T.G.O'R v NCSE - Judicial Review of Assessment of Need Process

| | [Home ]
[Databases ]
[World Law ]
[Multidatabase Search ]
[Help ]
[Feedback ]
[DONATE ] | |
| # High Court of Ireland Decisions | | |
| You are here: BAILII >> Databases >> High Court of Ireland Decisions >>

  T.G.O'R [A Minor] Suing By Her Mother and Next Friend J.O.R. v The National Council For Special Education and Ors, A.B. [A Minor] Suing By Her Mother and Next Friend M.B. v The National Council For Special Education and Ors (Approved) [2026] IEHC 194 (27 March 2026)

URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC194.html
Cite as:
[2026] IEHC 194 | | |
[New search ]

[Printable PDF version ]

[Help ]

---

---

---

THE HIGH COURT

JUDICIAL REVIEW **** ???????????????????????????????????????????????????????????

[2026] IEHC 194

RECORD NO. 2025/301 JR
?????????????????????????????????????????????????????????

BETWEEN

---

T.G.O'R (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND J.O.R.

---

APPLICANT

AND

---

?????????? RECORD NO. 2025/688 JR

???????????????????????????????????????????????
A.B. (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND,M.B.? ?????????????? ???????????

---

APPLICANT

---

-AND-

---

THE NATIONAL COUNCIL FOR SPECIAL EDUCATION, THE MINISTER FOR EDUCATION AND YOUTH, THE HEALTH SERVICE EXECUTIVE ****

RESPONDENTS

---

JUDGMENT of Ms. Justice Siobh?n Phelan, delivered on the 27 th day of March, 2026

---

INTRODUCTION

1. These two cases were heard together before me and concern issues arising in a significant number of other cases. In essence, the Applicants each challenge how the Assessment of Need (AON) process was handled by the National Council for Special Education (NCSE) and the Health Service Executive (HSE) in relation to the nomination of a person by the NCSE to assist the HSE in the assessment of educational needs pursuant to s. 8(3) of the Disability Act, 2005 (hereinafter? "the 2005 Act").

2. The central dispute is that the NCSE is alleged to adopt a fixed, inflexible policy under Circular 0025/2024 (since replaced), whereby a school principal or teacher is automatically nominated to assist with an AON education assessment.

3. It is argued that this approach fails to consider the individual needs of the child in identifying who has " appropriate expertise " to assist in the assessment, thereby fetters the NCSE's statutory discretion under s. 8(3) of the 2005 Act, and is unlawful, irrational, discriminatory and repugnant to Articles 40.1 and 42A of the Constitution.

4. Orders are sought quashing the NCSE nomination under s. 8(3) of the 2005 Act and the subsequent AON reports, together with declarations that the NCSE's actions and policies are unlawful. Orders are also sought compelling the NCSE to nominate a person with appropriate expertise, such as an educational psychologist.

5. In opening the case, counsel for the Applicants submitted that were the Applicants to succeed in these proceedings, a new AON Report would be required from the HSE.

6. In response, counsel for the HSE confirmed that the Applicants were entitled as a matter of law and irrespective of the outcome of proceedings, to seek and obtain a new Assessment Report.? For this reason, the HSE proposed not to take an active role in the proceedings, maintaining that once the issues between the NCSE and Minister for Education and Youth (" the education parties ") were resolved, the Applicants would be entitled to a new Assessment Report upon request in any event.

7. An extension of time for the challenge is required in respect of the NCSE's nomination, as proceedings did not issue within three months of that nomination in either case.

8. Orders made at the ex parte leave stage (Bolger J.) prohibiting the publication of identifying details on the basis that the Applicants are minors with disabilities continue in force.

BACKGROUND FACTS

9. There is a significant degree of similarity between the backgrounds to each of the Applicants' cases, although there are nonetheless important differences.? I propose to summarise the background to each case in turn.? In each case, the First Applicant is the minor child and the Second Applicant is the mother and next friend.

TO'R

10. The Applicant was born in 2020 and has been diagnosed with Autism (ASD) and Global Developmental Delay (GDD). The following chronology appears from the papers.

**

Application for an AON and the AON Process

11. Application was first made to the HSE for an AON under the 2005 Act in July, 2021.? In September, 2021, a Preliminary Team Assessment (PTA) was completed and on the 2 nd of November, 2021, a first AON Report issued indicating that further diagnostic assessment was required to determine whether the presentation was consistent with ASD. Autism diagnostic assessment was performed (ADOS/ADI‑R/Vineland) in November, 2022, when the Applicant was approximately 2 years and 9 months old. ??

12. In January, 2023, solicitors for TO'R challenged the PTA on the basis that it was not in compliance with 2005 Act and requested a multidisciplinary ASD assessment.?

13. In April, 2023, in correspondence addressed to the Applicant's solicitor, the HSE requested current information on whether TO'R was in pre-school or availing of the ECCE or Home Tuition Scheme so that that " a referral to the NCSE can be made under section 8(3) of the Disability Act and in line with current procedures."?

14. In a further letter, the Assessment Officer advised the Applicant's mother ("the Second Applicant") that during the AON she had:

" formed the opinion that there may be a requirement for an educational needs assessment to be provided through the National Council for Special Education (NCSE).? I have made a referral to the NCSE for assessment.? They will contact you directly to arrange any appropriate assessments."

15. In May, 2023, the Multidisciplinary Team Report issued, diagnosing ASD and Global Developmental Delay (GDD).? It was stated that the Applicant:

" would benefit from multidisciplinary assessment after the age of 5 years following further time in an educational setting."

16. In August, 2023, the Applicants' solicitor formally requested the finalised AON Report and service statement.?

AON Report

17. On the 24 th of August 2023, an AON? Report issued (the first full " gold standard " report after MDT).? The Report indicated that TO'R required supports in respect of health needs from speech and language therapy, psychology and occupational therapy.? As regards education needs, it was stated that based on the diagnosis of Global Development Delay, a specialist preschool placement would represent an appropriate preschool setting at that time and given her young age and difficulty engaging in standardized assessment:

?" she would benefit from a review of her cognitive ability when she was over the age of five and prior to starting school placement."

18. It was expressly noted that recommendations from the NCSE Report of Educational Needs would be confirmed upon receipt of the NCSE report.? It was stated in the cover letter:?

" As you are aware from correspondence with you by letter from the assessment of need office on 17/04/2023, you were advised that the assessment officer had formed the opinion that there may be a requirement for an educational needs assessment to be provided through the National Council for Special Education (NSCE). This referral was formerly made to the NCSE on17/04/2023. I have not received the educational assessment report yet.? Once I receive it, I will update your child's assessment report and will send it to you. The service statement outlining details of the services TO'R will receive based on this report is being sent to you by the HSE liaison officer."

19. On the 2 nd of October, 2023, a service statement issued outlining the services which could be provided.? The letter invited contact if circumstances changed or there was a change in the service delivered.

NCSE Nomination

20. On the 26 th of October, 2023, the Applicants' solicitors corresponded with NCSE with regard to the assessment of education need requesting nomination of an appropriately qualified assessor stating:

" Whilst our client has no difficulty with the NCSE contacting TO'R's school for the purpose of generating information, we do not consent to this assessment being conducted by the school principal. ?By return, please confirm the name of an appropriate educational psychologist who will be commissioned by the NCSE to conduct an assessment of TO'R's educational needs."

21. On the 1 st of November, 2023, the NCSE responded referencing High Court test cases on educational needs assessments and confirming an intention to await the outcome of two test cases raising similar issues before taking further steps in respect of the Applicant.

22. In April, 2024, Circular 0025/2024 (NCSE Education Needs Assessment Policy) issued.

23. On the 17 th of July, 2024, the Applicants' solicitors again requested NCSE nomination other than the school stating:

" Please nominate a suitably qualified person to complete this assessment... that letter should identify the expert retained by the NCSE to carry out the assessment. As this child has complex needs, we are asking you to formally consider the involvement of an educational psychologist in undertaking this assessment. We respectfully say that there is a legal duty on the ncse to consider such an application when deciding on a suitable assessor. Our clients, therefore, have no difficulty with you liaising with the HSE to discuss their assessments so that the ncse are in a position to determine the suitability of engaging an educational psychologist rather than relying on a school to fill out a pre-printed standard template storm to ground the Section 8(3) report. "

24. On the 24 th of July, 2024, t he Applicant's solicitor received a request for information in relation to TO'R's current educational setting to update the NCSE referral.? These details were provided confirming that she was in playschool and would be starting in mainstream school two days a week on a trial basis.? The HSE submitted an updated referral to NCSE in which it was indicated that TO'R was on a waiting list for several education settings.

25. On the 25 th of July, 2024, parental consent was confirmed by email.

26. On the 1 st of August, 2024, t he Chief State Solicitor's Office wrote in response to the letter of the 17 th of July, 2024, confirming:

" a referral in accordance with Section 8(3) of the Disability Act 2005" can progress on commencement of the school placement in September. "

27. In reply to the letter of the 1 st of August, 2024, the Applicants' solicitor wrote by letter dated the 8 th of August, 2024, with reference to their request for consideration of an educational psychologist for the purpose of undertaking the complex assessment. The letter stated:

" we are concerned that on foot of a recent High Court judgment the NCSE are operating a fixed policy in respect of only nominating school principals without a proper and adequate consideration of the particular needs of an individual child. We are attaching an information sheet for parents and guardians which appears to suggest that only the school principal will be nominated. We respectfully submit that this was not provided for in the recent High Court judgment of Miss Justice Bolger. In that context we are asking for proper consideration of our request of the 17th of July and for this to be done no later than 14 days from the date of this letter. In addition, the ncse might also confirm what reports on the child's needs were considered by them in the nomination process and full particulars should be provided to us in that regard. In the absence of confirmation that the fixed policy will be set aside and that individual considerations of the needs of a particular child will be undertaken we shall have no option but to institute judicial review proceedings on the basis that have fixed policy unlawfully fetches the discretion in an individual case to nominate people other than school principals to carry out this important educational assessment under the Disability Act ".

28. On the 24 th of October, 2024, the Chief State Solicitors responded substantively to the letter of the 8 th of August, 2024, stating:

"Pursuant to section 8(3) of the 2005 Act, the NCSE is obliged to assist the HSE in ensuring the completion of the education element of the assessment of needs process. The NCSE is not obliged itself to carry out the assessment under section 8(3) of the 2005 Act. ?Rather the NCSE is required to nominate a person with appropriate expertise to assist in the carrying out of an assessment of education need (if any) of the Aon applicant. ?The expertise referenced in section 8(3) of the 2005 Act is expertise in the identification of education needs. ?Section 8(3) of the 2005 Act provides a discretion to the NCSE to nominate the individual to carry out the review of education need under the section.? This discretion is subject only to the limitation that the person appointed must have the appropriate expertise to carry out an assessment of the education needs of the AON applicant.? The role of the NCSE is to consider the expertise of the person to be nominated to ensure that they are suitably qualified to identify the education need of the Applicant. ?As the applicant is a primary school pupil, the NCSE will in line with procedures agreed with education stakeholders, engage with the applicant school for the purpose of the section 8(3) assessment. ?The school authorities have been asked to complete the Report of Education Needs. ?The responsibility for the completion of the Report of Education Needs in schools lies with the principal or deputy principal. ?The form/report may be completed by the principal or deputy principal or by a teacher nominated by the principal."?

**

29. The letter further referred to s. 5 of the Education for Persons with Special Needs Act, 2004 (uncommenced) (hereinafter "the 2004 Act"), the Department of Education's policy on special education and the decision in LE & CD v. HSE [2024] IEHC 11 (C.D. No. 1) each of which acknowledge the expertise of teachers in assessing educational needs.? It also referred to the National Educational Psychological Services (NEPS) which provides psychological supports to schools under the auspices of the Department of Education.? It was stated:

"The nomination of the Applicant's school principal to assist the HSE assessment officer complies with the NCSE's statutory obligations in circumstances where the High Court has already determined that teachers have the appropriate expertise to be nominated under the section. ??Furthermore, the principal and teacher can be provided with additional assistance from the NCSE, including through the NCSE advisor, if that assistance is sought by the school. Thus, there is additional facility of support available from the NCSE to support the principal and/or teacher in relation to the assessment of education needs if that is requested and required.? In accordance with the relevant Department of Education Circular 0025/2020 which issued to schools, NEPS is also available to assist to advise in the process via request from an ncse advisor who has been supporting a particular school. ?The requirement for NEPS advice will be considered on a case by case basis. ?The fact that an alternative professional may also have sufficient expertise to be nominated does not make the nomination of a teacher irrational or unreasonable, nor does it amount to the NCSE fettering its discretion under Section 8(3) of the 2005 Act in the manner as alleged in your correspondence or at all. ?In nominating the Applicant's school principal, the NCSE is nominating a person with the appropriate expertise to assist the HSE assessment officer with the identification of the education needs of the Applicant.? The identification of education needs is carried out without regard to the cost of or the capacity to provide, any services considered necessary to meet the needs of the Applicant. ??Principals and teachers are and will be supported by the NCSE to assist the completion of the report of education needs. ?As set out in our previous letter of 1 August 2024 the NCSE is complying with its statutory obligations in respect of the referral made by the assessment officer under Section 8(3) of the 2005 Act concerning the Applicant.? The report of education needs has been with the Applicant's school for completion since the 17 of October".

**

30. On the 4 th of December, 2024, although correspondence with the Applicants' solicitors suggested that this had already occurred, the NCSE emailed the minor Applicant's school, nominating the school Principal and requesting completion of the Report of Education Needs.

NCSE Report of Education Needs

31. On the 12 th of December, 2024, the school completed the NCSE Report of Education Needs.? The pre-printed terms of the form notes that the report should be signed off by the nominated person and include the names and details of other persons involved in the completion of the report.? It is expressly stated " if you require help in completing this form, please contact NCSE helpline ".? It is also highlighted on the form that AON is a HSE led process and legal responsibility for the AON process lies with the HSE.? It set out in express terms that the obligation on the NCSE is to nominate " appropriate persons " to assist the HSE in the AON process.?

32. The form as filled in by the school in this case recorded that the nominated person had access to the prevision AON multidisciplinary team report diagnosing ASD.? The form was signed by the classroom teacher as a person nominated by the Principal to compete the Report and the Principal as the person nominated by the NCSE.

33. Information was provided by the school in the completed form in relation to the Applicant's social skills, self-help skills, social and emotional well-being, receptive communication, expressive communication, fine motor skills and gross motor skills each in the context of the Applicant's education needs.? Detailed information was also provided in relation to the Applicant's performance and participation in class, her abilities and those areas where difficulties were apparent.? It was also stated, however, that:

" her lack of verbal skills result in us not knowing her true ability in school.? Also as she is reluctant to follow instructions we are unsure whether she understands the instructions and is able to complete any task independently."?

34. In response to a question in relation to services required to meet additional education needs, psychology services to determine cognitive ability to assist her learning targets and occupational therapy services to support emotional regulation were identified.?

**

Updated AON Report

35. The HSE issued an Updated AON Report on the 17 th of January, 2025.? The Updated AON Report incorporated reference to the NCSE school‑completed Report of Education Needs.? The Updated AON Report was in identical terms to that issued to TO'R previously (without the benefit of the NCSE school‑completed Report of Education Needs) except that it included a new heading " Recommendations from NCSE Report of Educational Needs " under which heading the needs identified by the Assessment Officer on the basis of information provided in the NCSE school‑completed? Report of Education Needs were set out.?

36. The contents of the NCSE school‑completed Report of Education Needs were not reproduced in full or verbatim and the Assessment Officer did not transcribe the information obtained from the NCSE as constituting the assessment.? Nonetheless, additional educational needs were extrapolated from the NCSE school‑completed Report of Education Needs and these identified needs were incorporated in the Updated AON Report by the Assessment Officer by way of assessment of education needs.?

37. To illustrate this, it is useful to set out the information contained in the NCSE school‑completed Report of Education Needs in relation to certain heads and compare it with the related contents of the Updated AON Report.? In relation to social skills, for example, it was stated in the NCSE Report of Education Needs that:

"TO'R doesn't engage socially with other children when playing or doing class activities.? She tends to walk away from the table if the activity isn't engaging for her.? She engages in parallel play and creates imaginary worlds within her play.? She has language and can be articulate but doesn't use it to interact with her peers.? She doesn't present as understanding or using social cues.? At times when she wants something she will take our hand and lead us to the things she wants.? We are not always sure what she wants as she cannot verbally tell us."

38. The Updated AON Report did not repeat this but instead noted that TO'R:

" requires support to develop turn taking and play skills to further interaction opportunities with her peers ".?

39. In relation to Self-help Skills, the NCSE school‑completed? Report of Education Needs reads:

"TO'R is dependent on both adults and the classroom for basic needs. She needs assistance with dressing, undressing ** and preparation for eating. She has not gone to the toilet in the classroom and has only once led us to the toilet when we think she had a need to go. As she couldn't explain verbally what the problem was we were unable to help. As a result of this she can get impatient and annoyed.? TO'R tends to express her needs by holding our hand and trying to show us nonverbally what she wants or needs. She is not working at an independent level and needs adult assistance for all tabletop activities."

**

40. Rather than repeat or transcribe the NCSE school‑completed Report of Education Needs, in the Updated AON Report the Assessment Officer states under " Self-help Skill s" that TO'R required support to increase her independence in relation to daily living skills including dressing, meal times and toileting, strategies and supports to enable her express her needs to others which will reduce her frustration and upset when she is not understood and support to increase her independence in relation to tabletop activities.?

41. In similar vein, under separate headings in the Updated AON Report, the Assessment Officer records an assessed need drawing from the information provided by the NCSE school‑completed Report of Education Needs under each of the heads of social and emotional wellbeing, receptive communication and fine motor skills. ?Finally, the Assessment Officer identifies that education services outlined as required to meet additional educational needs were psychology and occupational therapy.? These services had already been identified in the earlier AON Report as required interventions.?

42. It should be noted that the Assessment Officer does not reflect the NCSE school‑completed? Report of Education Needs identification of psychology services to determine cognitive ability to assist her learning targets going forward, an educator recommendation contained in the NCSE school‑completed? Report of Education Needs.?

**

Response to Updated AON Report

43. The Updated AON Report was furnished to the Applicants on the 20 th of January, 2025. ?Notably, the Applicant's solicitors did not correspond with the HSE querying the fact that an educational psychologist had not been engaged to determine cognitive ability to ensure a gold standard assessment of education need.? There is no evidence that the fact that the school had identified psychology services as useful to determine cognitive ability issue has since been raised on behalf of the Applicants with the Assessment Officer whose function it was to carry out the gold standard assessment.?

44. Instead of corresponding with the HSE in respect of a need for education psychology assessment and a revised AON, on the 6 th of March, 2025, a judicial review application was filed in the Central Office of the High Court seeking, inter alia, to quash the NCSE nomination, the NCSE School Report of Education Needs and the Updated AON Report by reason of the failure of the NCSE to nominate an educational psychologist under s. 8(3) of the 2005 Act (nomination having been confirmed in writing to the Applicants on the 24 th of October, 2024, albeit actually made on the 4 th of December, 2024). ?

45. Leave to proceed by way of judicial review granted on the 7 th of April, 2025 (Bolger J.).

Parallel Developments

46. In parallel with the s. 8(3) referral and the updated AON process, it subsequently transpired that independently the Children's Disability Network Team (CDNT) had completed a cognitive review of TO'R on or about the 12 th of December, 2024.? The Assessment Officer was not made aware of this report of a cognitive review when carrying out the update to the Assessment Report, although the report of cognitive review was discussed with the Second Applicant on or about the 13 th of December, 2024 and a copy was made available for her to collect.?

47. Not only did the Applicants not make the Assessment Officer aware of the contents of the report of cognitive review but neither did they refer to it in bringing these proceedings.? The cognitive review was carried out on an interdisciplinary basis by a clinical psychologist and two senior occupational therapists.? The purpose of the report was stated as being to provide a " fuller understanding of her needs and to inform future educational planning ".?

48. It is apparent on the face of the report of the cognitive review that it was prepared with the benefit of a visit to TO'R's pre-school by the clinical psychologist and one of the two occupational therapists, as well as an assessment at the clinic involving input from the Second Applicant as parent.? From an analysis of the report of the cognitive review, TO'R was assessed as being within the extremely low range of ability in terms of general development.? Foundations of learning and language and communication skills, eye and hand coordination, personal social and emotional skills and gross motor skills, were all addressed in the report of assessment and were assessed as being significantly below the expected level for her age.? It was concluded:

"TO'R will require a school placement that offers a high level of adult support to ensure her health and safety needs are met and she can effectively access the educational curriculum. Following consultation with TO'R's mother, an autism class attached to a mainstream primary school represents the most appropriate school placement option for TO'R at this time."

**

49. It is unclear and I see no explanation on the papers before me as to ** why, on foot of this report of the cognitive review, the Applicants' solicitors did not correspond with the HSE seeking a revised AON and any further psychological assessment of education need identified as necessary to ensure a " gold standard " assessment instead of proceeding by way of judicial review application seeking to quash the earlier NCSE nomination, the NCSE Report of Education Needs and the Updated AON Report by reason of the failure of the NCSE to nominate an educational psychologist.?

A.B.

50. A.B. was born in 2019.? In June, 2022, a psychology report (on foot of a private assessment) confirmed ASD and it was reported that A.B. has significant speech, language, sensory and behavioural needs.?

**

Application for an AON and the AON Process

51. An AON application was made in July, 2023, but delays occurred in the assessment process.?

52. In November 2023, A.B.'s solicitor lodged a complaint to Disability Complaints Officer due to delays.? In December, 2023, this complaint was acknowledged by the HSE.? By Order of the High Court (Hyland J.) (in proceedings bearing Record Number 2024 JR 55) made on consent on the 12 th of March, 2024, the Court directed the HSE to determine the Applicants' complaint to the Disability Complaints Officer made on the 20 th of November, 2023 under s. 14 of the 2005 Act.

53. In March, 2024, the Disability Complaints Officer issued a final report finding that assessment should have been completed by 29 th of January, 2024.? Deadlines were set for assessment and service statement (April?June 2024).?

54. In line with directions from the Disability Complaints Officer, an interdisciplinary report was prepared by the CDNT on foot of assessments carried out by a senior clinical psychologist, a speech and language therapist and a senior occupational therapist dated the 24 th of April, 2024.? In this report it was stated:

" A.B. is enrolled in the Early Intervention Class at [XX School] and is due to transition to [XX] Autism Class in 2024. Referral information notes that they may consider the need for a special class placement, and are listed for cognitive assessment with the CDNT due to this. It has been reported that A.B. has had significant difficulty attending school since the beginning of March 2024, with A.B. becoming very distressed with any attempts to engage in the usual morning routine. At the time of the present assessment, A.B. was not attending school or other community activities.

At the time of the present assessment, parents noted that their main concern in relation to their daughter was her difficulty attending preschool (early intervention class) and engaging in community activities she had previously enjoyed..... Since March 2024, A.B. has presented with increasing difficulty attending school. She gradually reduced the morning routines she would engage in and what began as difficulty attending school increased to include difficulty getting dressed or ready or indeed leaving the house at all. A.B. will also not currently travel in the car."

---

55. Having assessed A.B. under various headings, the report stated:

" The nature and purpose of a cognitive and adaptive behaviour assessment was explained to parents as part of the assessment of need process. Parents understand that a cognitive assessment is not a requirement for enrolment in a mainstream school or an autism class attached to a mainstream school. They understand that should they wish to consider a special school placement for A.B. in future she will need such an assessment to ascertain if a diagnosis of an intellectual disability is appropriate in addition to her established autism diagnosis. Parents and the Psychologist were in agreement that as AB is enrolled in the Junior Infants autism class in [Name of School removed to avoid identification], it would be most appropriate to review her need for a cognitive assessment after a period in school."

**

56. In May 2024, the NCSE referred A.B.'s case to an early intervention class.?

57. An AON referral form was filled in by the Assessment Officer on the 22 nd of May, 2024 and sent to the NCSE in respect of education needs.? On its face, the referral form required the return of the assessment form to the HSE Assessment Officer by the 3 rd of June, 2024.

AON Report and Service Statement

58. A first AON report issued dated the 18 th of June, 2024.? Assessments carried out by a senior clinical psychologist and a multi-disciplinary team informed this report.? It identified needs in speech and language therapy, occupational therapy, behaviour support, parent training and monitoring of educational placement. Needs in psychology and parent support were also identified.? She was assessed as having an ongoing need for multi-disciplinary supports.? Specifically, a psychologist or behaviour specialist was identified as best placed to provide support and advice in relation to morning routines and leaving the house with an eventual return to school.? It was noted that A.B. required monitoring in relation to the suitability of her educational placement and any associated cognitive/adaptive behaviour assessment needs.? It was noted that either NEPS or the CDNT Psychologist could meet this need.?

59. The Report stated regarding education needs:

" A referral for an assessment of AB's education needs was sent to the National Council of Special Education (NCSE). Once their report is received an updated Aon report may issue on receipt of the NCSE information, if required."

**

60. A service statement issued dated the 5 th of July, 2024, fixing the 5 th of July, 2025, as the service review date and identifying ongoing speech and language therapy support in relation to receptive and expressive language and communication skills using a total communication approach.? It was confirmed that she would undergo assessment for a suitable high-tech communication aid during the year.

**

NCSE Nomination

61. Around the time the AON was being completed, the NCSE contacted the Second Applicant on foot of the referral from the HSE Assessment Officer.? The Second Applicant confirms on affidavit that she was initially contacted by phone on the 30 th of May, 2024.? She was advised that the educational assessment would be carried out in line with Circular 0025/2024.? In a further telephone call on the 4 th of June, 2024 and follow up email, she was requested to consent to the NCSE contacting A.B.'s school.? In her reply by return email, the Second Applicant gave permission to the NCSE to contact A.B.'s school but asked for it to be noted that she had requested for the assessment to be carried out by an educational psychologist.

62. The Second Applicant subsequently followed up to enquire if the school had been contacted.? By email dated the 3 rd of July, 2024, the NCSE noted that the HSE Assessment Officer had made a referral to the NCSE under s. 8(3) of the, 2005 Act.? It was explained that the role of the NCSE under s.8(3) of the 2005 Act is not to carry out an assessment but instead to nominate a person with appropriate expertise to assist the HSE Assessment Officer with the review of a child's education needs.? In this email, it was stated that the consent given was conditional on an educational psychologist carrying out the assessment.? It was stated that because only conditional consent had been provided to the NCSE carrying out its statutory function and nominating a person under s.8(3) of the 2005 Act, the NCSE was unable to return the Report of Education Needs to the HSE.? Finally, it was stated:

" Should you wish to reengage with the process the NCSE will nominate a person with appropriate expertise to assist the HSE with a review of your child's education needs".

**

63. The Second Applicant disputed that her consent was conditional and her consent to contact with the school was confirmed by email dated the 11 th of July, 2024.?

64. The Applicants' solicitor wrote to NCSE by letter dated the 17 th of July, 2024, to again confirm consent and to repeat the earlier request for nomination of educational psychologist.? In this letter, it was claimed that the NCSE was operating an unlawful fixed policy.? The letter requested that the NCSE and HSE liaise to consider A.B.'s specific profile stating:

" As you acknowledge, our client wishes to have an educational psychologist considered to carry out an assessment.? You are correct to say that a recent court judgment found that teachers in appropriate cases have appropriate expertise and may be suitably qualified to be nominated by the NCSE to assess a child's educational needs. That, however, is not the end of the matter.

We say that there is an obligation on the HSE to consider in each case who it is suitable to nominate in the individual circumstances of that case. ?We say that a parental request for an educational psychologist to engage in the process is a factor that should be taken into consideration in that regard.? We also are concerned that the ncse is now operating a fixed policy in relation to the nomination of schools and teachers in all cases.? This is not what was provided for within the judgment.

We are also concerned that this fixed policy of nominating schools only to carry out the assessments and for the filling out of a standard template form fails to take account of the individual considerations of a child in question.? This nomination is also being done by the NCSE without knowing anything about the child and the level of complexity of their needs.

We therefore call upon the ncse to liaise with the HSE, in order to ascertain the particular profile of the child so that a proper consideration can be given as to who is the nominated expert. ?We ask that you would engage in this exercise and specifically address the consideration as to who should be nominated, bearing in mind that our clients wish to have an educational psychologist to be the section 8(3) assessor and for good reason. ?

Please confirm that you will liaise with the HSE to undertake this exercise and that you will consider the nomination of an educational psychologist in respect of this matter our clients have no difficulty with you liaising with the HSE to consider their reports on the child. ?

Please confirm that such consideration will be given within 14 days of the date of this letter and the determination and the assessor is made outside of the fixed policy currently operating, as otherwise judicial review proceedings will have to issue based on what is an apparent inflexible and fixed policy on the part of the NCSE in meeting their statutory obligations under the Disability Act."

**

65. By letter in August, 2024, the Respondents' solicitors confirm that the nomination under s.8(3) would progress in September " on commencement of the school term ".? There was no substantive engagement with the terms of the letter of the 17 th of July, 2024.

66. On the 1 st of October 2024, the Applicant's solicitor wrote to inform the NCSE that A.B. had started in national school in an autism class.? Clarification on assessor nomination was sought as follows:

" This is unclear as to whether or not the NCSE has yet made a determination as to who the nominated assessor to assist in the completion of the assessment of need is to be.

Please refer to our previous correspondence in that regard and ask that you clarify your client's position no later than 7 days from the date of this letter." **

**

67. The clarification on assessor nomination sought does not appear to have been provided at that time.?

68. Under cover of email dated the 15 th of October, 2024, the solicitors for the Applicants wrote a letter of the same date to the Assessment of Needs Office requesting a copy of the s. 8(3) request sent to the NCSE by the HSE.? By email dated the 16 th of October, 2024, the HSE Legal Administrator for wrote to the Assessment Officer with reference to this request. By letter dated the 22 nd of October, 2024, the Assessment Officer wrote to the solicitors for the Applicants attaching a copy of the Request Form dated the 22 nd of May, 2024.?

69. By email dated the 23 rd of October, 2024, to the Applicant's solicitors, the Assessment Officer acknowledged that she had missed the Second Applicant's email to the NCSE, which was copied to her on the 11 th of July, 2024 and in which she had confirmed her consent.?The Assessment Officer informed the Second Applicant? that she had contacted the NCSE to request an update and asked that the request be escalated.

70. On the 31 st of December, 2024, the NCSE contacted the Second Applicant seeking additional information " in order to nominate an appropriate person ".? The information sought was limited to the child's name and date of birth and information as to whether A.B. was in a school or ELC setting or had a home tutor and, the contact details of any such.? The information requested was provided by email dated the 3 rd of January, 2025, by the Second Applicant.

71. By email dated the 16 th of January, 2025, the NCSE wrote to the Second Applicant to confirm that the First Applicant's School P rincipal had been nominated to complete the Report of Education Needs for A.B.?

NCSE Report of Education Needs

72. The First Applicant's school completed a Report of Education Needs dated the 28 th of January, 2025, using a template form.?

73. The pre-populated portion of the template form stated that the report was to be completed in accordance with Circular 0025/2024.? It required identification of the persons nominated by the principal to compete the report of education needs and provides for signature by the principal or deputy principal.

74. In A.B.'s case, the Report of Education Needs for the purposes of AON was completed by her autism class teacher and her mainstream class teacher and signed off by the School Principal.? The Report was only received by the Second Applicant on the 11 th of February, 2025.? As appears from the completed Report, A.B's school were still determining her level of receptive language, her communication with school staff has been limited to her physically showing them what she wanted and did not want and they were awaiting guidance from A.B.'s Speech and Language Therapist to implement a plan and goals for using an AAC device.

75. In relation to maths and numeracy it was stated that:

" We ** are ** still ** gauging ** AB's ** understanding ** of ** number ** and ** maths ** concepts. ** She ** can ** count but does not assign value to a number in class e.g. She knows 3 but doesn't count out 3 blocks to match. It could be that she can do this but doesn't understand that that is what ** we want her to show us: She cannot yet write numbers. She has been unable to show understanding of grouping or patterns or more or less. She knows colours and shapes. "

76. In relation to language and communication, the Report stated:

" This is our priority area for AB. She uses very few words in school and the majority of her communication is physical or making noises that we don't understand. She is using words for colours and says the alphabet and counts and has phrases such as "be careful"? She also says the name of some items in her personal books. As aforementioned AB can recite whole books and her personal books. We are looking forward to learning how to use her AAC device with her to increase communication both ways. In school it can be difficult to ascertain AB's understanding and most instructions are supplemented with visual cues. She completes a weekly listening test, with an SNA, and gets the colour part correct."

**

77. Similar information was provided under other headings including social/emotional self-regulation skills, motor skills, life skills and independence skills.?

78. It was emphasised in the report that the school were still determining receptive language levels.? In relation to services recommended by her teacher, occupational therapy, speech and language therapy and activities to build core strength and promote well-being were identified.?The report recorded that the majority of A.B.'s communication was of a physical nature or making noises that the school did not understand and that it was difficult to ascertain her understanding.

79. The completed Report of Education Needs was forwarded to the HSE by email dated the 30 th of January, 2025.

Updated AON Report

80. An Updated AON Report was issued by assessment dated the 11 th of February, 2025.? It relied on school data as having identified the following education needs of A.B.:

" Communication is a priority for the school AB uses few words and her communication is physical or making noises AB needs support with the developing her oral language.

Communication with school staff has been limited and they are still determining her level of receptive language.

AB ** has received an Augmentative Alternative Communication (AAC) device ** and school staff are awaiting guidance from her speech and language therapist to ** implement a plan and goals.

The school are still determining AB's 's understanding of numbers and maths

AB demonstrates sensitivity to noise and wears ear defenders to manage ** discomfort. She needs a quiet environment and nursey rhymes to calm her when ** dysregulated

She requires a structured routine and activities introduced with sensitivity

AB's fine and gross motor skills are a challenge for her. The school have received advice from her occupational therapist and SNA support is essential in incorporating muscle building into the school day. "

**

81. Education services required to meet the additional education needs of A.B. were identified by the Assessment Officer as occupational therapy, speech and language therapy and activities to build core strength and promote wellbeing e.g. horse riding, swimming.? A revised service statement also issued.? A copy of both the Updated AON and the NCSE report was furnished to the Second Applicant under cover of letter dated the 11 th of February, 2025.

Subsequent to Updated AON Report

82. In February, 2025, A.B. experienced severe anxiety resulting in school refusal/autistic burnout.? She stopped attending school.? This was the third such episode across placements. ?Her school Principal wrote by letter dated the 28 th of March, 2025, notifying " very significant changes " and advising that A.B. urgently required an educational psychology assessment.? In this letter, addressed " To whom it may concern " it was stated:

" On the advice of the NCSE, I have linked in with as many services as possible to secure additional supports to help A.B. return to school..... It is not clear at this time what the path is for her return to school and what steps need to be taken for this to occur in light of this, it is my view that A.B. Urgently requires an educational psychology assessment."

????? Response to Updated AON Report

83. By letter dated the 3 rd of April, 2025 (enclosing the letter of the 28 th of March, 2025 from the school principal in relation to A.B.'s autistic burnout and school absence), the Applicant's solicitor wrote to the solicitors for the NCSE referring to the fact that A.B. had been out of school since the 4 th of February, 2025.? No similar letter was written to the HSE or the Assessment Officer.? It was pointed out (presumably with reference to the Updated AON but without expressly so stating) that NEPS cannot assess an absent child.? It was contended that the NCSE school report was " wholly inadequat e."? It was stated:

" The fixed policy that the NCSE have adopted in relation to nominating only school teachers and principals to conduct these assessments is we respectfully suggest unlawful."

**

84. In this letter, the Applicant's solicitor repeated the earlier request for nomination of an educational psychologist to update the child's assessment of needs, warning that A.B.'s constitutional rights were compromised.? The letter concluded:

" We call upon you to confirm that an educational assessment will be commissioned no later than 7 days from the date of this letter and look forward to hearing from you in that regard.

In the absence of agreement to the above we shall have no option but to institute judicial review proceedings as against the minister for education and the NCSE in respect of this matter."

**

85. Notably, no correspondence issued to the HSE requesting a new AON informed by assessment by an educational psychologist either in light of the very significant changes communicated by the School Principal and the expressed need for an educational psychology assessment supported by the school or the fact that an educational psychologist had not been nominated to assist in the assessment of education need during the AON process, despite the request for same.? Instead, on the 16 th of May, 2025, a Statement of Grounds and Grounding Affidavits were filed in the High Court (in circumstances where the NCSE nomination had been communicated on the 16 th of January, 2025).

86. Leave to proceed by way of judicial review was granted on the 7 th of July, 2025, (Bolger J) to challenge the NCSE nomination and the Updated AON which ensued based on information contained in the NCSE Report.?

GROUNDS OF CHALLENGE AND OPPOSITION

87. Although there are some factual differences between the cases as summarized above and verified by affidavits (sworn by the mother and next friend in each case grounding these proceedings), the legal grounds advanced in both cases are almost identical.? On behalf of each Applicant, it is argued that the NCSE and HSE failed to comply with statutory duties imposed by the 2005 Act.?

88. A central legal ground is the contention that NCSE operated an inflexible, blanket policy of nominating only school personnel, typically teachers or principals, to conduct s. 8(3) educational needs assessments, although properly the obligation is to assist in the conduct of the assessment. ?It is alleged that this unlawfully fettered NCSE's statutory discretion, which must be exercised on a case‑by‑case basis and was irrational, unreasonable and ultra vires the 2005 Act in the absence of individual consideration of the circumstances of the case.? It is contended that by applying this blanket policy the NCSE ignored the child's individual needs, where an educational psychologist was clearly the appropriate expert.? It is contended that there was a failure on the part of the NCSE to properly consider requests for appointment of an educational psychologist.? It is argued that Circular 0025/2024 misstates the law, treating teachers as inherently suitable in all cases.? Accordingly, it is contended that Circular 0025/2024 is ultra vires the 2005 Act.

89. It is no part of the case as pleaded on behalf of either minor Applicant that the HSE failed to meet its obligations under s. 8 of the 2005 Act by failing to secure a report from an educational psychologist.? The primary relief sought against the HSE in the case as pleaded is consequent upon the alleged failure on the part of the NCSE to properly exercise its power to nominate a person with appropriate expertise to conduct an assessment.? This argument is grounded on the contention that the school nominee did not have the appropriate expertise to identify " full educational needs or services required " and that owing to the failure of the NCSE to appoint a person with appropriate expertise, the assessment under s. 8(3) fell short of the " gold standard " required.

90. Separate opposition papers were filed on behalf of the Education parties and the HSE.

91. Opposition papers filed on behalf of the Education parties were grounded on an affidavit from an Assistant Principal Officer at the NCSE and a Principal Officer at the Department of Education.?

92. In the Affidavit sworn on behalf of the Minister for Education, reliance is placed in the process developed to deal with the identification of children's special or additional educational needs as part of the " Continuum of Support " process in schools. This is described as " a problem-solving process of assessment, intervention and review that enables schools to identify need, to plan interventions and to monitor the progress of the individual students ** with special educational needs." It is confirmed that the process was developed by National Educational Psychological Service ("NEPS") **** and " involves dynamic and cyclical identification of educational need including the identification of education service need."? The Continuum of Support (Resource Pack for Teachers) and the Continuum of Support (Guidelines for Teachers) are exhibited.?

93. Weight is attached by the Education parties to the training teachers receive as part of their professional formation in assessment processes and the identification of educational need.? Reliance is also placed on extensive guidance material issued by the Department of Education for teachers in relation to identification of and provision for education needs.

94. It is contended that any duty imposed by s. 8(3) on the NCSE is owed to the HSE and not the Applicants.? Time points are raised in both cases insofar as the challenge to the nomination by the NCSE of the School Principal is concerned.? Great emphasis was placed on the statutory role of the NCSE under the 2004 Act, the responsibility of the Minister under s. 7 of the 1998 Act and the confined function under s. 8(3) of the 2005 Act to nominate a person with appropriate expertise to assist in carrying out the assessment under s. 8.? Reliance is also placed on the duty of the Board of Management under s. 14(1) of the 2004 Act, the function of the school under s. 9 of the 1998 Act and the duties imposed on teachers under s. 22(2)(d) of the 1998 Act.

95. It is pleaded that the nomination of the person under s. 8(3) of the 2005 Act is within the discretion of the NCSE, subject to the NCSE being of the opinion that the person has the appropriate expertise to assist with a review of the education service needs of the AON applicants.? It is further pleaded that a professionally qualified teacher has been held to have the appropriate expertise to be nominated by the NCSE to assist the HSE Assessment Officer with the assessment of the education needs of an AON applicant.

96. Reliance is placed on Circular 25/2024 which is referred to as setting out " the process to be adopted by the NCSE in respect of requests made by Assessment Officers under s.8(3) of the 2005 Act where the AON applicant is attending a recognised primary or post-primary school." The Circular was issued following the judgment of Ms. Justice Bolger in C.D. No. 1

97. It is further pleaded:

" The Minister was entitled to issue the Circular in circumstances where it concerned the First Respondent, which is a body that comes under the responsibility of said Minister.? This was confirmed by Ms. Justice Bolger in CD. v HSE (No. 2) [2025] IHEC 287."

**

98. The Education parties also plead that t he identification of the education needs of their students is one of the core functions of a teacher and it is a statutory duty of a recognised school to ensure that the educational needs of all students, including those with a disability or other special educational needs, are identified and provided for. It is pleaded that a teacher is an education professional with day-to-day knowledge of the education needs of their pupils and accordingly best placed to assist the Assessment Officer with the identification of education needs as part of the AON ?process.?

99. It is pleaded that the Circular 25/2024 identifies the role of the nominated teacher as being to assist the HSE Assessment Officer by completing the Report of Education Needs which involves the identification of the education needs of an AON applicant and the services which might be required by the AON applicant. It is contended that this is done on a resource blind basis in line with the provisions of the 2005 Act. ? The Education parties maintain that Circular 25/2024 does not purport to establish an inflexible policy.? It expressly acknowledges that there may be instances where a teacher or school may not be in a position to complete a Report of Education Needs at the request of the First Respondent. In addition, it is pointed out that the NCSE has nominated persons other than teachers to provide assistance under s.8(3) of the 2005 Act on foot of requests from the HSE.?

100. It is denied that there was no consideration of individual circumstances thereby rendering the nomination irrational or unreasonable.? Despite this assertion which appears to confirm individual consideration of each case, no evidence of the individual consideration given in each case is offered (as in when it was considered, by whom it was considered and the reason for nomination in accordance with the Circular and not otherwise).?

101. It is maintained that a teacher has the appropriate expertise to assist with the identification of the education needs of one of their pupils. The fact that an alternative professional would also have sufficient expertise to be nominated does not make the nomination of a teacher irrational or unreasonable, nor does it amount to the NCSE fettering its discretion under the provisions of s.8(3) of the 2005 Act.

102. It is acknowledged in the Statement of Opposition of the Education parties that in C.D. v. HSE (No. 2) [2025] IHEC 287 it was held that there may be legitimate reasons for a teacher to refuse to provide the assistance sought under s.8(3) of the 2005 Act which were not set out in the Circular.? It is pleaded that following the decision of Bolger J. in C.D. (No. 2), the Second Respondent has engaged with relevant stakeholders in order to update the Circular, solely in respect of the instance in which a teacher may legitimately refuse to provide the assistance sought under s.8(3) of the 2005 Act.? While it was acknowledged that there may be circumstances in which it is legitimate for a school to decline to provide assistance under s.8(3) of the 2005 Act, it was pointed out in both cases that the School Principals involved were satisfied to accept nomination and to provide assistance to the HSE Assessment Officer.? They were made aware of supports available from the NCSE in this regard.

103. In a supplemental affidavit, the new Circular 69/2025 which issued on the 7 th of October, 2025, is exhibited.? The deponent for the NCSE confirmed on affidavit that Circular 69/2025 applies only to the nomination of teachers by the NCSE under s.8(3) of the 2005 Act .? She confirms, however, that the NCSE has, in particular instances, when a request has been received from the HSE, also nominated persons other than teachers to provide the assistance requested under s.8(3) of the 2005 Act , such as former School Inspectors, former Early Years Inspectors and NCSE AON Associates. A NCSE AON Associate is described as " a qualified teacher with a Teaching Council Number who is contracted to work with the NCSE. "

104. The HSE's Opposition papers are grounded on affidavits from the Assessment Officer in each case.? It is pleaded that the Updated AON in each case was informed by an interdisciplinary report including input from a clinical psychologist addressed to both health and education needs.? It is also pleaded that as the AON Report was provided in each case in 2024 without the benefit of the NCSE Report, the challenge was significantly out of time and time did not recommence with the provision of the revised report.?

105. Insofar as the case relates to the AON carried out by the HSE, specifically the case made that the Assessment Officer carried out no independent assessment and failed to reach her own findings in respect of educational needs and services, it is contended that an alternative remedy is available under the statutory process prescribed in the 2005 Act.? Reliance is also placed on the possibility of applying for a new AON report under and the obligation on the HSE to provide such a report if requested in either of these cases in accordance with s. 9 of the 2005 Act.

106. In its pleadings, the HSE stands over the Updated AON Report reiterating that the assessment was based principally on the assessments carried out by MDT clinicians from the (CDNT).? The updated AON Report, informed by information from the NCSE, left unchanged the Assessment Officer's findings and determinations as regards the Minor Applicant's health and education needs in each case.? In preparing the Updated AON Report, it is pleaded in both cases that the Assessment Officer had considered the results of the interdisciplinary assessment and made findings and determinations on that basis as to each of the Minor Applicant's health and education needs.? It is contended that the Assessment Officer recorded education needs alongside health needs in the Updated AON Report.?

107. It is pleaded that the update to the Assessment Report incorporated information obtained by the Assessment Officer from the Report of Education Needs, which were treated as of assistance, did not otherwise alter the findings and determinations made by the Assessment Officer of the matters at s.8(7).? It is denied in the Statement of Opposition that the needs identified in the updated Assessment Report " mirrored precisely the services identified " in the Report of Education Needs and to the extent that recommendations obtained by way of assistance provided through the s.8(3) process (or identified in other assessments), are reflected in the Assessment Report, it is contended that this was entirely appropriate and to be expected.?The Assessment Officer in A.B.'s case confirms on oath:

" the updated Assessment Report reflected my own findings and determinations on the matters I was required to address under s.8(7). I made those findings and determinations by reference to the material which I, as Assessment Officer, had gathered in the course of the Applicant child's assessment under Part 2 of the Disability Act."

**

108. Similarly, as occurred ?in the case of TO'R, the Assessment Officer in the case of A.B. confirmed that that she did not see any need to alter the statement of education needs contained in the earlier AON Report but updated the relevant subheadings by reference to the contents of the Report of Education Needs to take account of the new information furnished through the s.8(3) process.? In the TO'R case, the Assessment Officer confirmed that she was neither made aware of the cognitive assessment carried out in December, 2024, by the disability services nor asked to carry out a new assessment in the light of its contents and the assessment of educational need contained in that Report from which it was recommended that T'OR be placed in an autism class attached to a mainstream primary school. ?

109. In like manner, in the case of A.B. it was confirmed that the HSE was not party to the correspondence dated the 28 th of March, 2025, from the School Principal stating that A.B.'s education needs had changed significantly and did not receive a copy before commencement of litigation.? Accordingly, no request was directed to the Assessment Officer post delivery of the Report of Education Need or change in circumstances as communicated by the school for psychological input as part of the Assessment Officer's assessment of education need under the 2005 Act.

Legal Framework

110. In C.M. v. HSE [2021] IECA 283 Donnelly J. outlined the interwoven approach in different legislation to the assessment of disability needs.? She described the ideals underpinning the 2004 Act enacted by the Oireachtas to provide for educational needs assessment and education provision for children with disabilities, pointing out that these ideals were not realised as crucial parts of the 2004 Act had not then been commenced. ?Referring to provision in the 2005 Act for the assessment of health needs and educational needs and service provisions, she noted that it too had only been partially commenced.? Indeed, even now, both the 2004 and 2005 Acts remain only partially commenced requiring the Court to navigate a labyrinthine patchwork of statutory provisions when determining the scope of legal responsibilities in meeting the complex needs of a disabled child.

111. Given the centrality of the NCSE's role to the dispute, it is useful to begin with its statutory function. The NCSE was established by s.19 of the 2004 Act. ****?Its remit is significantly restricted by the failure to commence key sections of the 2004 Act which confer statutory rights to assessment, education plans and appeals processes on children with special educational needs. ?

112. By S.I. No. 507/2005, ss. 1, 2, 14(1)(a), 14(1)(c), ss. 19-37, ss. 40-44, ss. 50-53 of the 2004 Act are operative.? A commencement order has yet to be made under s.53(2) of the 2004 Act in respect of the core statutory framework for assessments, educational plans, appeals, and service provision under ss. 3-13, s.14(1)(b) and 14(1)(d)-(f), ss. 15?18 and ss 38?39.? Notably, ss. 4 and 5 of the 2004 Act providing for assessment of a child's educational needs have not been commenced.? In their non-commenced terms, ss. 4 and 5 seek to impose educational assessment duties on the HSE and the NCSE in respect of children not in school and children in school respectively. ?

113. Although ss.4?5 of the 2004 Act have not been commenced, the Applicant relies upon them as interpretative aids because they illuminate the approach to assessment of educational need envisaged by the Legislature when introducing the 2004 Act and the statutory meaning of " appropriate expertise " in the education‑needs context.? In C.M. v. HSE, the Court of Appeal (at para. 58) considered it proper to strive to give an interpretation to both the 2004 and 2005 Acts which respects the fact that they were enacted within a short space of time of each other, and deal, to a substantial degree, with the same issue (educational needs of children), and furthermore have clearly interlinked provisions.?

114. Section 4(2) and (3) of the 2004 Act provide:

"(2)? Where the Council is of the opinion that a child who is a student has or may have special educational needs it shall, unless an assessment under section 3 of the child is being or has been carried out, cause an assessment under this section of that child to be carried out.

(3)?? Where the parents of a child are of the opinion that the child has or may have special educational needs they may request ?

(a) the relevant (sic) health service executive, or

(b) in the case of a child who is a student, the Council, to cause an assessment under this section of the child to be carried out."

**

115. Section 5(1) gives examples of appropriate expertise and provides as follows:

"An assessment under section 4 shall be carried out with the assistance of persons possessing such expertise and qualifications as the Health Service Executive or the Council considers appropriate; those persons may, in the discretion of the Health Service Executive or the Council, include one or more of the following: (a) a psychologist; (b) a medical practitioner; (c) the principal of the school which the child is attending or a teacher of that school nominated by the principal; (d) an appropriately qualified social worker; (e) a therapist who is suitably qualified..." **

**

116. Section 14 of the 2004 Act, addressed to the duty of schools. is only partially commenced.? Section 14(1)(c), which requires a Board of Management of a school to co-operate to the greatest extent practicable with the NSCE and to provide to the Council such information as the Council may from time-to-time reasonably request for the performance by it of its functions, is operative.?

117. The functions of the NCSE are set out in s. 20 of the 2004 Act and this provision is operative.?Functions include consultation with schools and the HSE to plan and coordinate the provision of education and support services to children with special educational needs, to ensure that the progress of children with special educational needs is monitored and reviewed at regular intervals and to assess and review the resources required in relation to educational provision for children with special needs.? Pursuant to s. 20(3)(a) of the 2004 Act, the NCSE is obliged in the performance of its functions to implement the policies relating to education generally and the education of children with special educational needs which are formulated, from time to time, by the Minister for Education.

118. The Applicants rely on multiple provisions of the 2005 Act.? Part 2 of the 2005 Act establishes a statutory scheme for the assessment and identification of the health and education needs of children suspected of having a disability. Accordingly, while the educational assessment provisions of the 2004 Act have not been commenced, s. 8 of the 2005 Act which envisaged assessment of educational need in conjunction with the NCSE in discharge of its functions under the 2004 Act, have been. ?

119. The 2005 Act imposes independent and non‑delegable duties on the HSE and prescribes the limited, defined role for the NCSE. ?Under the 2005 Act, the AON conducted by an assessment officer appointed by the HSE culminates in a single statutory Assessment Report and, where disability is found, a service statement must also be provided. The NCSE has a role in assisting the HSE in respect of the preparation of an AON report in the manner set out under s.8(3) of the 2005 Act.?

120. Section 8(3) imposes a duty on the NCSE to nominate " a person with appropriate expertise " and provides the statutory basis for the NCSE's involvement as follows:

"Where an assessment officer is of opinion that there may be a need for an education service to be provided to an applicant, he or she shall, as soon as may be, request the Council in writing to nominate a person with appropriate expertise to assist in the carrying out of the assessment under this section in relation to the applicant and the Council shall comply with the request."

**

121. In C.M. v. HSE, the Court of Appeal observed with regard to the proper interpretation of s. 8(3) (at para. 59) that:

"Section 8(3) makes it mandatory for the Council to nominate a person to assist with that provision."

**

122. While the duty to nominate is mandatory and non-delegable, nonetheless the role of the NCSE is limited under the terms of s. 8(3) of the 2005 Act to the nomination of a person with appropriate expertise to assist the HSE Assessment Officer in the carrying out of the assessment of the AON applicant's education needs.? The nominated person is not under a duty to carry out the assessment.? The duty on the NCSE is activated only where the Assessment Officer, charged with conducting an assessment for the HSE under the 2005 Act, forms a view that education needs may arise.?

123. Once a request is made for assistance under s.8(3), the NCSE must make a nomination of a person with appropriate expertise.? There is no corresponding duty prescribed whereby the nominee is required to accept a nomination to provide assistance.? Under the statutory scheme, the nominated person's role is confined to assisting the HSE Assessment Officer, not replacing or supplanting the statutory assessment under s. 8 with a separate assessment under the 2004 Act. ?It is noted that under the Scheme of the 2004 Act (largely still inoperative) some division of assessment function was envisaged as between the NCSE and the HSE.?

124. While a function was envisaged for both the HSE and the NCSE to some degree, it was envisaged under the general scheme that the NCSE would have responsibility in respect of in-school children and the HSE would have that responsibility for assessments of education needs under the 2004 At for out-of-school children (see para. 83 of C.M. v. HSE).? Importantly, however, it could not be said that the HSE had no involvement in the assessment of education need under the 2005 Act such that the failure to commence provisions of the 2004 Act meant that there was no legal responsibility to assess educational need.? It was never intended that the HSE could direct the NCSE to carry out an educational assessment in discharge of its obligations under s. 8 of the 2005 Act.? Even within the uncommenced s. 4 of the 2004 Act there is no " referra l" by the HSE to the NCSE for the purposes of the carrying out of an assessment under the section.? Instead, it was envisaged that either the HSE or the NCSE would cause the assessment to be carried out (para. 86 of C.M. v. HSE) but in view of the uncommenced status of assessment duties intended for the NCSE, the only operative obligation to assess education needs rests with the HSE at this time.

125. There is now no ambiguity that the role of the NCSE under s.8(3) of the 2005 Act is not to carry out any assessment, but instead to nominate a person with appropriate expertise to assist the HSE Assessment Officer in the carrying out of the assessment under the section.? The interaction of the respective assessment functions under the 2004 and 2005 Acts was addressed in C.M. v. HSE as follows (at para. 21):

"The Disability Act was intentionally broader in scope that the EPSEN Act as it also covered health needs.? Furthermore, it covered the assessment of the educational needs of an adult (whether the Act included the assessment of the educational needs of a child is of course the issue in this judgment.)? The EPSEN Act assessments of educational needs only covered an adult to the extent that they were a student in a primary or post-primary school."

**

126. Section 8(7) of the 2005 Act addresses the Assessment Officer's obligation to make independent findings and prescribes the mandatory contents of the final statutory Assessment Report as follows:

"A report under subsection (6) (referred to in this Act as 'an assessment report') shall set out the findings of the assessment officer concerned together with determinations in relation to the following? (a)... (b) in case the determination is that the applicant has a disability? (i)... (ii) a statement of the health and education needs (if any) occasioned to the person by the disability." **

**

127. This provision places a non‑delegable duty on the Assessment Officer to reach their own findings; determine the child's education needs and integrate any " assistance " provided under s.8(3) into an independent statutory evaluation.

128. Section 8(5) dictates that the assessment be " resource‑blind " requiring that the assessment be conducted:

"without regard to the cost of, or the capacity to provide, any services identified..."

**

? The assessment has been described as a "' gold standard" assessment.

129. Section 8(9) provides for a referral by an assessment officer who identified a need for the provision of an education service to refer the matter for the purposes of an assessment under ss. 3 and 4 of the 2004 Act.? As these provisions of the 2004 Act have not been commenced, this pathway is not open to the Assessment Officer.? Nonetheless, it is clear that it was envisaged that where an assessment under s. 8 of the 2005 Act identifies the need for the provision of an education service in the case of a child enrolled in a school, the assessment officer would refer the matter to the principal of that school for the purposes of an assessment under s. 3 of the Act of 2004.? In any other case, it was envisaged that the Assessment Officer would refer the matter to the NCSE for the purposes of an assessment under s. 4 of the Act of 2004.? As pointed out in C.M. v. HSE, s.8(9) can only be utilised after the receipt of the AON report issued in conformity with the 2005 Act.? In other words, it is only engaged at the conclusion of the process that is commenced by section 8(3) and constitutes a separate or further pathway for educational needs assessment.

130. Section 9 of the 2005 Act provides for a right to seek an assessment.? Section 9(8) provides for a further application in a case where an application was previously made where there has been a material change of circumstances, further information has become available which either relates to the personal circumstances of the applicant or to the services available to meet the needs of the applicant, or a material mistake of fact is identified in the assessment report.? Under s. 9(7), the HSE may only refuse application for an assessment if an assessment has been carried out and the period for review of the assessment has not expired or in the case of a child, the assessment has been carried out within the period of 12 months before the date of the application.? It is common case that the child applicants in these proceedings are both now entitled, as of right, to make application for a new Assessment of Need.

131. Section 10 requires that the assessment be carried out in a manner which confirms to standards set under that provision.? Consequent upon standards prescribed, the AON Assessment Report duly completed should comply with HIQA's Standards for the Assessment of Need.

132. Section 11 provides for the provision of service statements but s. 11(6) requires that:

"a Service Statement... shall not contain any provisions relating to education services where the subject of the statement is a child." **

**

133. This limitation applies after the assessment. ?It has been found that it does not diminish the requirement in s.8(7) that the statutory assessment itself must identify education needs (C.M. v. HSE). ?The fact that s. 11 does not contain service provision in relation to educational services is best understood within the scheme of the interwoven provisions of the 2004 and 2005 Acts.? The s. 8(3) and s. 8(9) provisions in the 2005 Act were tailored to dovetail with the 2004 Act in a manner which makes the pathway to education service provision dependent on an assessment under the 2004 Act and reflects a division of responsibility between State actors charged with duties regarding the delivery of health and education services respectively.?

134. Under the 2005 Act, in the health sphere of activity, it is the statutory responsibility of the Assessment Officer to coordinate the full AON and prepare the Assessment Report and Service Statement, albeit that the Service Statement does not address educational services because it had been envisaged that the provision of such services would be governed by the 2004 Act.

135. The former Circular whose provisions it is sought to impugn in these proceedings expresses itself as relying on the Education Act, 1998 (hereinafter "the 1998 Act") for the proposition that schools are responsible for identifying the education needs of their pupils.? Pursuant to the provisions of s.7 of the 1998 Act, the Minister's functions include the determination of national education policy and the planning and co-ordination of the provision of education in recognised schools and centres of education along with support services.

136. Section 9 of the 1998 Act ** provides that it is a function of a recognised school to provide education to students which is appropriate to their abilities and needs and that a school shall, inter alia:

"ensure that the educational needs of all students, including those with a disability or other special educational needs, are identified and provided for"

137. The functions of the Board of Management are set out in s. 15 of the 1998 Act and include performing the functions conferred on it and on a school and doing so in accordance with the policies determined by the Minister from time to time and cooperating with the NCSE in the performance by it of its functions under the 2004 Act relating to the provision of education to children with special educational needs.?

138. Under the broad structure of the 1998 Act (more particularly ss. 22 and 23) the Principal has overall responsibility for the day‑to‑day management of the school and is accountable to the Board of Management for school management and teachers share responsibility for instruction and contributing to students' education and personal development, under the direction of the Principal.? Section 22(2)(d) of the 1998 Act provides that teachers shall carry out those duties as assigned to them by or at the direction of the Principal. ?In addition, the s. 22 provides that Principals shall carry out such duties as are assigned to them by their Board.? Under s. 22, teachers in a recognised school work under the direction of the Principal and have both instructional and broader educational responsibilities including evaluation of progress and periodic reporting of evaluation results and the performance of duties assigned to them by or at the direction of the Principal subject to their contract of employment or any applicable collective agreements.?

Circular 0025/2024

139. Circular 0025/2024 was issued by the Department of Education in April, 2024.? It was addressed to managerial authorities, principals and teachers of recognised primary, secondary, community and comprehensive schools and the chief executives of education and training boards.? Notably, the Circular is not addressed to the NCSE.? This Circular replaces and supersedes Information Notes SE 0002/2022 and SE 0001/2023 (referred to in C.D. No. 1).?

140. The Circular makes clear that AON is a statutory process under the 2005 Act and the HSE is responsible for the process. ?It spells out that the 2005 Act requires an Assessment Officer, working for the HSE, to determine the health and education needs of an AON applicant.? If an Assessment Officer forms the opinion that there may be a need for an education service to be provided, then the NCSE has a statutory obligation to nominate ' appropriate persons ' to assist the HSE in the assessment of this educational need.?

141. The Circular does not refer to any procedure for assessing whether a teacher has appropriate expertise for a particular child but states that the Department of Education is satisfied that teachers are suitably qualified and therefore ' appropriate persons' to be nominated by the NCSE to assist the HSE in the AON process.? The Circular explains that teachers are suitably qualified due to their expertise and professional judgment, and this position has been upheld in a recent court judgment (an apparent reference to C.D. No. 1).

142. In terms of the obligations on the school, it is noted that one of the functions of a school under the 1998 Act is to ensure that the education needs of all children/young people, including those with disabilities or special educational needs, are identified and provided for.? Further, it is noted that the 2004 Act (s. 14) requires schools to cooperate with the NCSE in the performance of its functions.? On this basis, the Circular asserts that schools are required to complete the Report of Education Needs to meet this requirement.?

143. The Circular provides that teachers in mainstream schools can use SET coordination time to complete the Report and may request NCSE support.? It is indicated that teachers can use all professional knowledge and any available reports and it is stated that recommendations made need not be restricted to services available in the child's school.? It is confirmed that the AON is to be carried out without regard to cost or capacity (a s. 8(5) " gold standard " assessment).

144. It is explained that the HSE Assessment Officer must make a final professional judgment based on all information, including the teacher's report.? The Department of Education further advises that schools experiencing higher referral numbers will receive additional AON support hours and that the NCSE will continue to provide guidance and support.?

145. The Circular does not state that schools' nominees may decline a nomination (even though the High Court in C.D. No. 1 said teachers may decline) but acknowledges that rare circumstances may exist where a school/teacher cannot complete the report (for example, by reason of a child's absence due to illness or lack of familiarity with the child) and the NCSE and Department will support the process of completion of the Report of Education Needs in such circumstances.

146. In addressing the role of the school, the Circular points out that the identification of education needs is central to inclusive education.? It is explained that the nominated teacher assists by completing the Report of Education Needs and identifying needs and services required.? The Circular states:

"Teachers can use their professional knowledge and experience of working with the child/young person to identify educational needs and may use any information known to them...including any relevant available reports."

**

In this way, the Circular confirms that the teacher reflects on all available information and is not limited to the Student Support File.

147. Examples of education needs are identified as including language and communication, learning, social/emotional, behavioural, motor/sensory and personal development.? It is further expressly stated that teachers may identify needs requiring services not available in the school and that in accordance with s.8(5) of the 2005 Act, the assessment is resource‑blind.? A non-exhaustive list of examples of education services is set out to include special class or special school, assistive technology, speech and language therapy, occupational therapy, psychologist and SNA.

148. In terms of the role of the NCSE, ?the Circular provides:

"If requested, the NCSE will forward to the school a "Report of Education Needs for the purpose of Assessment of Need (Disability Act 2005).? Where forwarded to a school, this form should be completed by the school principal/deputy principal, or a teacher nominated by the school principal who is familiar with the child/young person (e.g. Class/Subject Teacher, Special Education Teacher."

**

149. It is explained that the NCSE provides a preferred return date and the Circular states:

"Schools must cooperate with NCSE (Education Act 1998; EPSEN Act 2004).? Completed reports are returned to NCSE, then forwarded to the HSE."

**

150. The Circular also addresses supports available to schools and lists supports as including detailed NCSE Guidance Note for Schools (link provided), specialist in‑person/online support, NEPS advice available via the NCSE Advisor.

151. The NCSE's accompanying documentation (linked through the Circular) confirms:

"The NCSE Report of Education Needs should be completed by the principal, as nominated by the NCSE, and the principal may nominate a deputy principal and/or teacher(s) in the school to assist in carrying out an assessment of education needs."

**

152. Since the commencement of these proceedings, Circular 0025/2024 has been replaced and is from October, 2025 superseded by Circular 0069/2025.? The new Circular 0069/2025 is in almost identical terms but insofar as the refusal of a nominated teacher to accept a nomination is concerned, it has been amended in relevant part to now provide:

"... nominated persons should complete the Report of Education Needs when requested by the NCSE to do so, subject to what is outlined hereunder. ?

It is recognised that there may be legitimate reasons as to why a teacher or school may not be in a position to complete a Report of Education Needs for an applicant enrolled in that school, or may only be able to provide some assistance, but not all of it.

For example, the student may be a reluctant school attendee and consequently school personnel may not be sufficiently familiar with their interests, strengths and needs. Similarly, the student may have very poor attendance due to illness. Examples of these circumstances are provided in Appendix 1 for illustrative purposes.

In such situations, upon notification, the NCSE, in collaboration with the Department, will engage with the school, as necessary, to support the school in relation to the nomination made by the NCSE, including assisting with the completion of the Report of Education Needs where applicable."

**

153. Counsel on behalf of the Applicants refers to these changes as curing the issue identified by Bolger J. with Circular 0025/2024 by making it clear that a school may have a legitimate basis to refuse to accept an NCSE nomination.

ANALYSIS AND DECISION

Overview

154. By way of general overview, it is important to contextualise these proceedings as the most recent in a series of cases concerning the role of the NCSE in assessing educational needs in the context of the AON process.? The decision of the Court of Appeal in C.M. v. HSE is an important point of departure because of its authoritative addressing of the interaction of the 2004 and 2005 Acts, making it clear that there is a duty on the HSE under s. 8 of the 2005 Act to assess education need, regardless of the fact that it had undoubtedly been intended by the Legislature that the assessment of educational need for the purpose of providing educational services would be governed by the still non-commenced provisions of the 2004 Act.

155. In C.D. No. 1 Bolger J. considered a challenge to an AON report prepared following a nomination by the NCSE.? The challenge relied in substantial part on the process followed by the NCSE in its communications with the school including the contents of an Information Note and other Department of Education documents utilised by the NCSE to inform the school personnel of how the assessment of needs report should be completed by them. ?The Applicants argued that the AON report failed to incorporate reference to the assistance contemplated and required by s. 8(3) of the 2005 Act which in turn had led to a failure to set out certain matters which are required by s. 8(7) of the Act.? The HSE denied any breach of s. 8(3), disputing that s. 8(3) requires an assessment officer to independently evaluate the information provided by the NCSE's nominee.? Through this approach, the HSE sought to abdicate responsibility for the assessment of education need to the NCSE.

156. In C.D. No. 1, the Deputy Principal who had prepared the NCSE report swore an affidavit saying that he was not qualified to do a " true assessment " and that the assessment of the child's needs required input from a multidisciplinary team.? Notably, he had not recorded his concern as to his qualification or the need for input from a multidisciplinary team in the report he returned to the NCSE, but Bolger J. subsequently found this was because he was instructed to prepare the report with reference to information on the school file.?

157. In her judgment, Bolger J. stated (at para. 25):

"I accept the NCSE's submission that a professionally qualified teacher has the appropriate expertise to be nominated by the NCSE pursuant to s. 8(3) and is suitably qualified to assess a child's educational needs. I find support for that in provisions of ss. 4 and 5 of the 2004 Act, set out above.? Section 5(1)(c) specifies both a principal and a teacher as suitable persons to carry out a s. 4 assessment of a child who may have special education needs.? Neither section has yet been commenced but Donnelly J. in the Court of Appeal found in C.M. that they are relevant to the interpretation of s. 8(3).? She described (at para. 59) the statutory duties granted to the Council under the 2004 Act as one that "fits neatly" into its statutory functions under s. 8(3).? In addition, whether or not s. 5 has yet been commenced, it provides for a principal, or teacher nominated by the principal, to carry out an assessment of a child's education needs and therefore it is difficult to see how the application of a similar arrangement in the NCSE's exercise of their s. 8(3) discretion could be viewed as irrational."

Bolger J. added (at para. 26):

"...It is not necessary for the NCSE to have the power to compel a person whom they choose to nominate.? A teacher might legitimately decline to provide the assistance that the assessment officer requires or might indicate an ability to provide some but not all it.? Counsel for the NCSE acknowledged that if school personnel refused to complete an assessment of education needs report, they could not be compelled to do so.? That did not arise here as the teachers in both schools completed the assessment of education needs reports without raising any concerns at that time (albeit the deputy principal in D's school subsequently expressed his concerns to this Court), but.... Despite Mr. Doody's confirmation of a possible alternative to the nomination of a principal or teacher in the child's school, there is nothing in the documentation he has exhibited that advises a principal or teacher that it may be possible for them to decline their nomination to assist the assessment officer with the assessment of their pupil's educational needs."

**

158. Bolger J. found that s. 8(3) of the 2005 Act clearly gives the NCSE a statutory role in the AON process and it is a matter for the NCSE how they discharge that role, if they do so within the parameters of the provisions of the Act.? She saw no impediment to the process being guided by the Minister for Education given her overarching statutory functions in terms of the provision of education and the NCSE.? She was, however, critical of inaccuracies in an information note in which informed schools that " the AON assessment of education need is informed by school-based information " together with other elements of the information note which she considered purported to impose a limit on the information to be used without reference to the resources blind, " gold standard " AON required under the 2005 Act, regard to services not currently available in the school and the imposition of a non-existent statutory basis for imposing an obligation on the school to return the form by a date to the specified by the NCSE.? This was considered problematic because it undermined the important statutory entitlements that the assessment of needs process involves for the disabled student.?

159. She concluded that the process applied in that case was not in compliance with the requirements of s. 8(3) " to assist in the carrying out of the assessment under this section " because it was not a resource and capacity blind assessment in accordance with s. 8(5) for the purpose of an assessment of the child's education needs such as will enable the assessment officer to set out the services that they consider to be appropriate to meet the child's education needs. ?She held that once the assessment officer decides to invoke s. 8(3) of the 2005 Act, the NCSE must nominate a person with appropriate expertise (who can be a qualified teacher) to assist in the carrying out of the assessment of the child's education needs without regard to " the cost of, or the capacity to provide, any service identified in the assessment as being appropriate to meet the needs of the applicant concerned ".? She held that the information provided can then be used by the assessment officer in carrying out an assessment of needs and in setting out their findings and determinations of the matters set out at s. 8(7) of the 2005 Act.?

160. Although the judgment in C.D. No. 1 makes only passing reference to a concern regarding a fettering of discretion when finding that there was no impediment to the process being guided by the Minister for Education given her statutory functions in terms of the provision of education and the NCSE, it is apparent from the pleadings in the cases before her (a Statement of Grounds in Record No. 2023/146 JR was ?handed up to me during the hearing of these proceedings) that the Minister's Policy as set out in the then applicable Information Note SE 0002/2022 and Information Note SE 0001/2023 had been challenged in C.D. No. 1 as a fettering of discretion in the manner in which it limited the nomination of persons to carry out assessments of educational needs (or more properly expressed, to assist in the carrying out of assessments of needs).?

161. It is clear from her judgment that Bolger J. was not persuaded by the fettering of discretion argument as she endorsed the involvement of teachers in assisting in the assessment process on foot of the Information Notes.? Her concern in C.D. No. 1 was to make crystal clear that the duty to assess remained with the Assessment Officer and not the NCSE nominee.? She also considered it important that any appropriate person nominated by the NCSE be aware that the assessment process in which they were participating by their expert assistance mandated a resources blind approach.

162. In the aftermath of C.D. No. 1, the NCSE and the HSE developed a new s. 8(3) process and the Minister introduced Circular 25/2024.? In purported compliance with s. 8(3) of the 2005 Act and the Circular, a new AON report was issued in the C.D. No. 1 case which transcribed a Report of Education Needs completed by the principal who was nominated by the NCSE pursuant to s.8(3).? The new AON Report was then challenged in C.D. No. 2 on the basis, inter alia, that the Assessment Officer treated the report received from the NCSE as the assessment of education need rather than assistance in assessing need.? It was contended that the assessment officer's understanding of what would result from the referral was inconsistent with the statutory provisions and represented a misunderstanding of the assessment officer's statutory duties in conducting the assessment themselves.

163. In C.D. No. 2, Bolger J. further clarified with regard to s. 8(3) of the 2005 Act that it envisages the nomination of a single person only by the NCSE and while it requires the assessment officer to request the NCSE to nominate a person to assist where the assessment officer is of the opinion that there may be a need for an education service to be provided to an applicant and requires the NCSE to comply with that request, it does not impose an obligation on the nominated person to provide the assistance that has been sought.?

164. In her judgment in C.D. No. 2, Bolger J. reiterated that in contrast with the role of the Assessment Officer, the involvement of a person providing assistance pursuant to s. 8(3) is more limited and finite as their involvement in the s. 8 process comes to an end once they have provided such assistance as they consider appropriate.? The distinction between the s. 8(2) person and the s. 8(3) person was summarised as (at para. 11 ):

" a s. 8(3) person assists with an assessment whereas a s. 8(2) person carries out the assessment. The task of the former inputs to the task of the latter but providing assistance with an assessment does not transform or evolve into carrying out an assessment ".?

165. Bolger J. found that the statutory responsibility to under s. 8 of the 2005 Act cannot be discharged by the Assessment Officer simply reproducing an NCSE report and adopting it as the assessment of need.? She further found (at para. 46):

"It is a matter for an assessment officer to determine who they might arrange to carry out an assessment pursuant to s. 8(2), but at a minimum, they would have to make those arrangements in accordance with the requirements of the Regulations and could not simply rely on the NCSE nomination, pursuant to s. 8(3), of a person with appropriate expertise to assist in carrying out an assessment. ?Even if the same person provided both assistance and an assessment (which would presumably require them to understand that that was what they were doing), the assessment officer would still have to comply with their obligations in relation to making their findings and determinations in the Assessment of Need."

**

166. Bolger J. added that the statutory powers on which the Minister sought to rely do not require a teacher to complete a Report of Education Needs.? She observed that Circular 25/2024, introduced after her decision in C.D. No. 1, ** does not take adequate account of the situation that the Court set out in that decision to the effect that a nominated person may decline to provide assistance or indicate an ability to only provide some but not all of the assistance that was requested.

167. Although it appears that Circular 25/2024 was not the subject of challenge in C.D. No. 2 and no relief was sought with respect to the Circular, Bolger J. observed that the Circular, in limiting when a nominated person might decline to complete the report to rare circumstances, including where a person barely knows the child, did not reflect the possibility of other circumstances in which a teacher might legitimately decline to provide all or some of the assistance that the assessment officer requires. ?

168. In allowing, however, that a decision to decline to provide assistance must, itself, be legitimate, she also acknowledged that it was possible that the statutory obligations on a school under the 2004 Act and the 1998 Act, might operate to compel the provision of assistance to an assessment officer to enable an assessment of a child's education needs to be done in the absence of a legitimate reason why a teacher might be unable to assist.? Her criticism, therefore, appears to be that the Circular did not acknowledge that there may be legitimate reasons why the nominee might be unable or unwilling to assist such that there would be no duty on the nominated teacher to complete an NCSE Report of Education Needs.?

169. I am satisfied that the ratio of C.D. No. 2 in granting relief was based on identified shortcomings in the HSE Assessment Officer completing the AON by adopting the Report of Education Needs as though it was the s. 8 assessment of education need when it was only provided to assist in that assessment.? In consequence there had been no assessment of education needs because the HSE Assessment Officer incorrectly and unlawfully treated the Principal's s. 8(3) assistance provided in his Report of Education Needs, as a s. 8(2) assessment.?

170. As for shortcomings identified by her in the Minister's Circular, Bolger J. noted that relief might not be required as she expected the Minister to take account of the Court's findings, albeit she granted liberty to apply in this regard.? In circumstances where such relief had not been sought, however, the matter of whether the Circular constituted an unlawful fettering of discretion was not squarely before Bolger J. for determination in any event.? It is to be expected that if application had been made on foot of the liberty to apply granted, further arguments would then have been.

171. Of note, as advised during the hearing before me and set out above, former Circular 25/2024 has in fact been reviewed and a new Circular 0069/2025 circulated, purportedly to take account of Bolger J's criticisms, to spell out more explicitly that there may be legitimate reasons as to why a teacher or school may not be in a position to complete a Report of Education Needs for an applicant enrolled in that school, or may only be able to provide some assistance.? The new Circular 0069/2025 cites examples of situations where this may happen as including that the student may be a reluctant school attendee and consequently school personnel may not be sufficiently familiar with their interests, strengths and needs or may have very poor attendance due to illness.? Further " illustrative " examples are provided in a new appendix e.g. student no longer on the school roll, recent enrolment or transition, school closure or emergency circumstances or absence of key personnel.

172. In consequence, Circular 0025/2024 which the Applicants seek to impugn in these proceedings is no longer in force.? The ongoing relevance of Circular 0025/2024 is limited to the lawfulness of the nomination made by the NCSE in reliance of the process detailed in that Circular before judgment was delivered in C.D. No. 2 and insofar as, by reason of terms of Circular 0025/2024, the NCSE considered it had no discretion to appoint an appropriate expert other than in accordance with Circular 0025/2024 or it was represented to the Principal that participation in the process was a legal requirement, even in circumstances where it was considered that the Principal could not ensure a report informed by appropriate expertise because this was not made clear in the Circular.

173. From a review of the case-law and the statutory provisions, it seems to me that the legal position is clear in many respects having been the subject of several authoritative judgments.? This clarity informs my approach to discretionary factors addressed in the next part of this judgment.? Before proceeding to address these discretionary factors, it may be helpful for me to set out what I understand to be the meaning and effective of the interwoven statutory provisions and the principles established on the caselaw before proceeding further.?

174. From the overview above of the legislative framework, I am satisfied that the 1998 Act imposes general educational responsibilities, not a statutory duty to carry out AON functions.? Taken together, the statutory framework demonstrates that the HSE appointed Assessment Officer has a personal legal duty to conduct the statutory assessment (s.8(7)).? The assessment must be conducted to a " gold standard ", without regard to cost or capacity (s.8(5)).? The NCSE's role is limited to nominating a person with appropriate expertise to assist the Assessment Officer (s.8(3)).?

175. Who may possess " appropriate expertise " is child‑specific and teachers are one possible category of expert (as illustrated by uncommenced terms of s.5(1) of the 2004 Act).? I heard no argument against the proposition that the NCSE should consider the circumstances of each child in deciding who might be a person with appropriate expertise on the facts of a given case.? It seems to me that it would follow that the NCSE may need to consult further with the HSE and the school where the child is enrolled to gather sufficient information (including access to existing reports) to decide on its nomination of a person with " appropriate expertise ".?

176. The school's role under the 1998 Act and the 2004 Act is general and this legislation does not displace the statutory architecture of the 2005 Act specific to the AON process under s. 8.? To my mind, the request made by the NCSE in nominating a person as having appropriate expertise to assist the HSE Assessment Officer through the provision of information relating to the education needs of the child does not necessarily impose any new or additional legal duties on the person nominated.?

177. Specifically, there is no obligation under s. 8(3) of the 2005 Act on the nominee to accept a nomination.? Where the nominee is a principal or teacher, there are obligations deriving from the 1998 and 2004 Acts to provide information in relation to education needs of children enrolled in the school as observed by the educator but not to carry out an assessment of education need.? Where the teachers are familiar with a particular child, the information requested is likely information which would assist in the assessment of educational need.? The provision of such information does not, however, constitute an assessment of education need for the purpose s. 8 of the 2005 Act but may be relied upon to assist in that assessment.

178. The NCSE's duty under s.8(3) of the 2005 Act is limited to nominating a person with " appropriate expertise ".? The NCSE is not required to carry out the assessment itself and it is not required to nominate a particular type of expert, if the person nominated has " appropriate expertise ".? On the precedent, of C.D. No. 1 and C.D. No. 2 a qualified teacher can lawfully constitute a person with appropriate expertise under s.8(3), subject to consideration of the circumstances of the individual case.? Where the nominated person provides assistance but additional expertise is required to complete the AON to a gold standard in accordance with law, this is a matter for the HSE Assessment Officer.? The NCSE's legal duty is only to nominate an appropriate expert to assist with the educational component of an AON, not to conduct the educational assessment itself.

179. As for the argument that the former Department of Education Circular wrongly suggested that teachers must complete a Report of Educational Need or conveyed that schools have a legal obligation to conduct an educational assessment and teachers are always appropriate experts thereby misrepresenting the effect of the decision in C.D. 1, in my view it is necessary to properly contextualise the former Circular within the overall scheme.?

180. As already stressed above, the former Circular was not directed to the NCSE but to schools.? In its terms, the former Circular did not purport to impose a legal duty on teachers to perform an assessment of education needs.? Insofar as an underlying duty on teachers is concerned, the former Circular instead relied on a duty to provide information based on the educator's expertise and experience, albeit it was clearly envisaged that this information could in turn assist in the assessment of education needs by the HSE Assessment Officer.? Indeed, I do not understand it to be in dispute that schools must provide information to the NCSE under duties imposed pursuant to the 1998 and 2004 Act.? Nor is it in dispute that teachers were not under a statutory duty by reason of the terms of the former Circular to conduct an education assessment on foot of a nomination by the NCSE.? It is not contended that this was either the effect or the intent of the former Circular.

181. The former Circular, properly contextualised within the statutory scheme, served to guide a teacher on the provision of information after the NCSE had nominated a teacher to assist the HSE Assessment Officer not on how to complete an assessment of education need for the HSE Assessment Officer.? Granted, it was clear that the information to be provided under the former Circular was to assist the HSE Assessment Officer in the conduct by the HSE Assessment Officer of an assessment of education need.?

182. In my view the former Circular could not legally bind the NCSE to always nominate teachers or principals as the statutory discretion created under s. 8(3) belongs to the NCSE alone. ?If, as some wording in the Statement of Opposition suggests, the former Circular was understood as setting out a process the NCSE would always follow in every case in which a child was enrolled in a school, this would constitute a fetter on the statutory discretion vested in the NCSE under s.8(3) of the 2005 Act.? While the Minister may seek to guide the exercise of discretion under s.8(3) of the 2005 Act, it seems to me clear that she may not direct only nomination under the terms of a circular which limits the power to nominate to teachers in the school where a child is enrolled.? This is because s. 8(3) contains no such limitation and a legal basis for such a limitation on the statutorily vested discretion has not been identified.?

183. Whatever about wording used in the Statement of Opposition to the effect that the former Circular set out the process to be adopted by the NCSE in respect of requests made by Assessment Officers under s. 8(3) of the 2005 Act where the AON applicant is attending a recognised post primary school, it is also pleaded and confirmed in evidence that the NCSE sometimes nominates persons other than teachers in a school in which the child was enrolled.? The fact that the NCSE sometimes nominates persons other than teachers in a school where a child is enrolled, appears to be some acknowledgment by the NCSE that it has a wider power than simply nominating in accordance with the terms of the former Circular.?

184. Notwithstanding the evidence that the NCSE sometimes nominates persons other than teachers in a school where a child was enrolled, it remains unclear on the evidence whether this was a power exercised only in cases where a child was not enrolled in a school.? Nor is it stated why the NCSE concluded that on the facts and circumstances of these cases, the appropriate course was to nominate in accordance with the former Circular rather than otherwise including by nominating an educational psychologist.? While it might be inferred from the circumstances that where the Minor Applicant was attending school, the NCSE concluded that the school would be able to assist in the assessment of education need, this was not stated on behalf the NCSE in terms.? Given my conclusions below, most particularly in relation to the consequences of delay in this case, I do not propose to make findings in these cases as to whether there has been an unlawful fettering of discretion consequent upon the NCSE treating the terms of the former Circular as precluding the nomination of an appropriate person under s.8(3) of the 2005 Act other than a teacher in a school where a child is enrolled.?

185. I acknowledge, however, that the failure on the part of the NCSE to explain its decision other than by reference to the terms of the former Circular potentially grounds a concern as to whether there was an individual consideration of the circumstances of each of the minor applicants before proceeding to nominate in accordance with the terms of the former Circular.? As such consideration is tied to the proper exercise by the NCSE of its discretion, were it to be established that the NCSE complies with a directive from the Minister by way of Circular in relation to nomination without considering the circumstances of the particular case, a question could arise as to whether this is akin to an unlawful abdication of a statutory discretion on the part of the NCSE.? As I am not satisfied, for reasons set out below, that it is appropriate for me to determine a challenge directed to the nomination process at this remove and in the circumstances of these cases, I am not prepared to consider whether on the evidence in either case an unlawful abdication of statutory discretion has been established.

186. To be clear, however, I am satisfied that routine nomination by the NCSE of principals/teachers is not unlawful unless NCSE treats this as a fixed policy and does not engage in a case-by-case consideration.? The key is whether NCSE still exercises independent judgment case-by-case.? By stating, as the former Circular did, that teachers are " suitably qualified and therefore appropriate persons," the Court's findings in C.D. No. 1 were somewhat oversimplified.? Properly stated, the effect of those findings was that teachers may be appropriate persons for nomination, but this depends on the child and the context.?

187. The wording used, whilst an oversimplification, does not purport to remove the NCSE's statutory discretion to decide that the circumstances of a particular child meant that nomination in accordance with the former Circular would not be appropriate.? The Circular might therefore be seen as misleading as contended in these proceedings only if a teacher felt compelled to complete a report despite lacking expertise without so stating because they read the Circular as implying that they must.? The current cases fall to be contrasted with the circumstances established on the evidence in C.D. No. 1 in this regard as no evidence has been adduced from the Principal in either case to the effect that they lacked the necessary expertise to prepare a Report of Education Need providing information in relation to the education needs of the Minor Applicants.

188. To the extent that the Applicants have focussed on the failure on the part of the NCSE to nominate an educational psychologist to assist in the assessment process in these proceedings, it is my view that they have allowed themselves to be distracted from the fact that the obligation to perform the gold standard assessment under s. 8 of the 2005 Act is on the HSE Assessment Officer, whereas the obligation on the NCSE is merely to nominate an appropriate expert to assist in that process.? If a gold standard assessment requires input from an educational psychologist which is not otherwise available by reason of the nomination of the NCSE in a given case, then the legal obligation to obtain such input rests with the HSE and the Assessment Officer responsible for delivery of an AON in accordance with law. ?

189. Due to preoccupation with the role of the NCSE as nominating authority without an apparent acknowledgment of the limitations of that role (referring in correspondence to nomination of an expert to conduct an assessment) it seems to me that the Applicants overlooked or became confused as to the fact that any want in the AON by reason of a failure to secure a report from an educational psychologist for the purpose of assessment of education need was a matter to be raised with the HSE and was equally a matter which could be pursued through the statutory appeals process.? Notwithstanding the decisions in C.M., C.D. No. 1 and C.D. No. 2, continued confusion on the Applicants' side in relation to where legal duties lie is apparent through references in correspondence variously to withholding consent to assessment being conducted by the school principal in solicitors correspondence on behalf of TO'R in October 2023 and regarding the NCSE policy of appointing teachers to " conduct these assessments " in A.B.'s case as late as the 3 rd of April, 2025, when manifestly the role of the nominee was to assist in the assessment not to conduct the assessment.

190. In each of these cases, there were factors which could have been relied upon to present a cogent case to the HSE Assessment Officer as to why input from an educational psychologist was warranted (albeit in the TO'R case it is unlikely that such a case could have been made without engaging with the fact that psychological input had been obtained but had not been used to inform the AON).?

Time‑Bar / Delay

191. The challenges in each of these cases centre on the nomination by the NCSE of the school principal and not an educational psychologist, as requested by the Applicants.?

192. In the TO'R case, the fact of nomination by the School Principal in accordance with the Circular was communicated by letter dated 24 th of October, 2024, although the actual nomination was only made on the 4 th of December, 2024.? The subsequent AON was dated the 17 th of January, 2025 and notified to the Applicant on the 20 th of January, 2025.? Proceedings were filed in the Central Office of the High Court on the 18 th of March, 2025, outside the three-month time limit under Order 84, Rule 21 of the Rules of the Superior Courts (RSC) insofar as the nomination by the NCSE was concerned, albeit just within three months of the publication of the updated AON.?

193. In the A.B. case, the nomination pursuant to the provisions of s.8(3) of the 2005 Act was made on the 14 th of January, 2025.? The Second Applicant was aware as of the 16 th of January, 2025, that the NCSE had not nominated an educational psychologist to assist the Assessment Officer under the provisions of s.8(3) of the 2005 Act.? The NCSE Report of Education Need, dated the 28 th of January, 2025, was completed by the First Applicant's autism class teacher and mainstream class teacher, signed by? her ?School Principal and provided to the Assessment Officer on the 30 th of January, 2025.? The Applicants received the completed Updated AON Report on the 11 th of February, 2025.? Judicial review proceedings were filed on the 16 th of May, 2025, again more than three months after being informed of the nomination on behalf of the NCSE and also more than three months after receipt of the Updated AON Report.

194. Unsurprisingly, the Respondents argue the applications in both cases are out of time under Order 84, Rule 21 of the RSC, albeit the HSE in the Opposition papers filed contended that time to challenge the AON ran from when it was first prepared more than a year before in each case.?

195. The statutory appeals process available under the 2005 Act does not extend to a nomination of a person with appropriate expertise to assist in the assessment process by the NCSE.? This means the nomination was final from the date it was made unless the NCSE rescinded it or it was successfully challenged in legal proceedings.? Despite earlier correspondence directed to the NCSE seeking nomination of an educational psychologist in both cases, no correspondence issued in either case alleging unlawfulness of the nomination following the communication of the NCSE's nomination and in advance of the delivery of the AON Report (only a short window in A.B. but longer in TO'R).?

196. It is submitted on behalf of the Applicants that they could not have anticipated the HSE would proceed to complete the Updated AON Report in such circumstances and without seeking a further nomination from the NCSE " in compliance with its obligations " (at para. 52 of the Applicants' written submissions).? In this regard, it is significant that the provisions do not envisage a requirement to nominate more than one such person and that there is no ongoing role for the NCSE under the AON process, such that it seems to me clear that the time to challenge the NCSE nomination ran from the date of that nomination or the date of communication of that nomination.? Once the nomination was made, the NCSE had discharged its statutory responsibility.?

197. At risk of repetition, under the statutory framework, responsibility for delivering the " gold standard " education assessment rested not with the NCSE but with the HSE Assessment Officer and insofar as a need for further expertise was identified based on the Report provided by the NCSE nominee in order to conduct a gold standard assessment, the responsibility to procure such additional necessary assistance lay with the HSE and the Assessment Officer (with overall responsibility for the assessment) and not the NCSE (whose role was at an end).?

198. I am satisfied that the NCSE nomination occurred and was communicated to each of the Applicants more than three months before proceedings issued in both cases.? Time runs for the purposes of Order 84, Rule 21(1) RSC from the point at which there is a formal consequence adverse to the interests of the applicant, this being when a decision having legal effect is made.?

199. Applying well established principles, the Applicants had a three-month period from the point at which they either knew or ' ought to have known ' of the nomination they now seek to challenge.? In consequence, insofar as these proceedings turn on the lawfulness of the nomination by the NCSE, they are both out of time as the grounds for challenge arose more than three months before proceedings were commenced.? In the absence of an applicable statutory appeal process, it must have been apparent to the Applicants, legally represented at all material times, that time for challenge of the NCSE decision ran from either the date of communication of the decision to nominate, or at the very latest the date of the decision to nominate.? Insofar as there was any want of consideration on the part of the NCSE as to who the appropriate person for nomination might be in each case, this lack of consideration crystallised for the purpose of bringing a challenge by way of judicial review with the making of the nomination of the School Principal.

200. The three-month time-limit is not absolute and the Applicants may seek an extension of time under Order 84, Rule 21(3) to (6) RSC which provides as follows:

"(3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:? (a) there is good and sufficient reason for doing so, and? (b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either:? (i) were outside the control of, or (ii) could not reasonably have been anticipated by the applicant for such extension.

(4) In considering whether good and sufficient reason exists for the purposes of sub-rule (3), the court may have regard to the effect which an extension of the period referred to in that sub-rule might have on a respondent or third party.

(5) An application for an extension referred to in sub-rule (3) shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall set out the reasons for the applicant's failure to make the application for leave within the period prescribed by sub-rule (1) and shall verify any facts relied on in support of those reasons.

(6) Nothing in sub-rules (1), (3), or (4) shall prevent the Court dismissing the application for judicial review on the ground that the applicant's delay in applying for leave to apply for judicial review (even if otherwise within the period prescribed by sub-rule (1) or within an extended period allowed by an order made in accordance with sub-rule (3) has caused or is likely to cause prejudice to a respondent or third party."

**

201. While it is open to the Applicants to seek an extension of time, to obtain such an extension they must identify both good and sufficient reason for giving the extension and demonstrate that the reason(s) for the applicant missing the deadline were either outside of their control or could not reasonably have been anticipated by them.?

202. The principles governing the grant of an extension of time under Order 84, Rule 21 RSC are now well established.? As summarised in Arthropharm v. HPRA [2022] IECA 109 (para. 87) the effect of the rule is clearly to place an obligation on the party seeking an extension of time to identify on oath the reasons the application was not brought during the period fixed by Order 84 Rule 21(1) RSC and during the time between the expiry of that point and the date on which the application was eventually bought (MO'S v. Residential Institutions Redress Board [2017] IEHC 251 ** at para. 60).? When presented with reasons to ground an extension of time, I must assess the basis advanced ' carefully and critically ' (SC SYM Fotovoltaic Energy SRL v. Mayo County Council [2018] IEHC 20 ** (at para. 72(7)), conscious of the purpose underlying the rule which has been identified as to reduce delay (Heaphy v. Governor of Cork Prison [2018] IECA 125 at para. 99 per Whelan J.). ?

203. Before I can extend time, I must be satisfied that the reasons given explain and objectively justify the delay in bringing the application and are sufficient to justify the court in exercising its discretion in favour of the applicant (O'Donnell v. Dun Laoghaire Corporation [1991] ILRM 301; 1990 WJSC-HC 2108, at p. 315 to 316; MO'S at para. 60).? I must take account of all relevant circumstances, including the decision that is sought to be challenged, the nature of the claim that it is invalid and ' any relevant facts and circumstances pertaining to the parties ' (MO'S at para. 60).? In applying the factors so found, my essential function is to engage in a ' balancing exercise ' including balancing the rights of the Applicants with those of the Respondents, taking into account also the prejudice to either consequent upon the failure of the Applicants to proceed to make its application within the time fixed by the rules.?

204. It is clear from the terms of Order 84, Rule 21(1)(b) RSC that in addition to being satisfied that good and sufficient reasons exist for an extension of time, I must also be satisfied as a matter of fact that the circumstances which resulted in the delay were outside the control of the applicant or could not reasonably have been anticipated by the applicant for such extension (per Baker J. Irish Skydiving Club Ltd. v. Kilkenny County Council [2016] IEHC 448 at para. 9).? Where a delay arises from circumstances which were within the control of the applicant or could reasonably have been anticipated, I may not extend time.

205. The Respondents contend that no adequate justification for delay or basis for granting an extension of time has been demonstrated.? I agree.? I have struggled and failed to identify anything that might constitute good and sufficient reason for giving an extension on the basis advanced in either case.? Nor can I see a basis for concluding that the reason(s) for the Applicants in both cases missing the deadline were either outside of their control or could not reasonably have been anticipated by them.? In both cases the NCSE Reports and the Updated AONs were delivered to the Applicants in a timely manner once completed.? In each case, they were delivered well within three months of the communication of the nomination or nomination of the school principal.? Accordingly, it is no answer to a time issue that the outcome of the process initiated by the nomination of the school principal did not become clear within three months of the nomination occurring because in both cases, it had.?

206. Even allowing for the sake of argument only that it was appropriate to know the outcome of the process before commencing proceedings, proceedings could have issued promptly following delivery of the Updated AON because they were delivered without delay and in time to enable a challenge to be brought in respect of the nomination in accordance with time limits fixed under the RSC .? Thus, while in TO'R, reliance is placed on the fact that the report was only received in January, 2025 claiming that the consequences of the NCSE nomination and the application of a process in accordance with the terms of the Minister's former Circular only " crystallised " then, as already noted above, the Updated AON and NCSE school completed Report of Education Need were delivered in a timely manner such that it was still possible to commence proceedings with the benefit of the Updated AON Report while remaining within prescribed time limits under the Rules. ?

207. In A.B., the only grounds identified to justify an extension of time relate to the practicalities of swearing affidavits and difficulty in finding one earlier report (and although pleaded, this difficulty is not specifically deposed to on affidavit in any satisfactory manner).? I am mindful too that the proceedings could have been commenced without the identified missing report with an undertaking to obtain and exhibit it or a copy could have been requested from the HSE (and the HSE deponent points out that no request was made to the HSE for copy documents at any time).? The report in question dated to an earlier stage of the process and while relevant to the issues raised in these proceedings, it was not so central as to justify non-compliance with time limits.? Any difficulty in locating a copy should not reasonably have precluded proceedings being commenced in time with an undertaking to exhibit once a copy was obtained. ?Such difficulty as did arise and is relied upon is described in only the very vaguest and most general of terms in grounding the application for an extension of time.?

208. Even though no real or satisfactory basis has been advanced to ground the grant of an extension of time, given that these proceedings involve minors with special needs and their education rights, I have also considered the impact of a refusal of an extension of time in this case.? In circumstances where it was clearly open to the Applicants to avail of the statutory complaints process insofar as the adequacy of AON by the Assessment Officer is concerned, where it is also plainly the case that the Applicants are entitled as a matter of law to a new AON and where there is no evidence that the NCSE nominee considered they lacked necessary expertise to assist in the assessment process through the provision of the information sought, I am satisfied that the impact of refusing to extend time for the Applicants does not result in injustice.? Specifically, the refusal of an extension of time in these proceedings does not impede the Applicants in now pursuing the question of an educational psychologist with the HSE Assessment Officer whose statutory duty it is to deliver a " gold standard " assessment of educational need by requesting a new AON. ?

209. It is an important feature of these cases, relevant to the conduct of a balancing exercise in the exercise of a discretion to refuse to extend time, that ultimately the Applicants seek to compel the provision of a revised AON, preferably informed by input from an educational psychologist, but are entitled to a new AON as a matter of course.? In conducting a balancing exercise for the purpose of exercising my discretion, I cannot overlook that the Applicants in both cases have never corresponded with the HSE or the Assessment Officer regarding the necessity for input from an educational psychologist for the purpose of achieving a gold standard AON either consequent upon the failure of the NCSE to nominate an educational psychologist upon request or otherwise.? Furthermore, neither have challenged the existing Updated AON using the statutory process available under the 2005 Act on the basis that such input was necessary.? In addition, neither corresponded with the HSE Assessment Officer regarding relevant circumstances (in TO'R the receipt of a report addressing cognitive ability for educational purposes and in A.B. a change in circumstances resulting from school refusal) for the purpose of seeking a new AON.? The question of any prejudice to the Applicants arising from the refusal of an extension of time falls to be moderated by reference to these considerations.

210. On the other hand, were I to extend time, the NCSE and the Minister for Education, whose statutory functions insofar as the previous AON is concerned are spent, are potentially liable, in the NCSE's case in respect of a limited role to assist in a process for which they hold no overall responsibility and, in the Minister's case, in respect of a Circular which has been replaced in response to criticisms made in a judgment which the Minister has sought to take on board.? In consequence, the former Circular impugned in these proceedings will not impact on the conduct of a new AON which the Applicants are now entitled to seek as a matter of law whatever the outcome of these proceedings.? On a balance of prejudice therefore and having regard to the issues in the proceedings, I conclude that it would not be an appropriate exercise of discretion to extend time in either of these cases.

211. Insofar as the Applicant's solicitors were engaged in correspondence in relation to the nomination of a person with appropriate expertise by the NCSE contemporaneously with the making of the nomination process and took issue with the Circular ever before the nomination was made, it is difficult to conclude that the Applicants do not bear responsibility for the delay in both cases.? They clearly had the benefit of legal advice at all material times and were raising the very issues in correspondence in advance of the nomination.? Having clearly identified the issues which they seek to pursue in these proceedings, they failed to then pursue proceedings in a timely fashion.? In neither case do the Applicants meet the test for an extension of time identified by the Court of Appeal (Murray J.) in Arthropharm v. HPRA.

212. For these reasons I refuse to extend time insofar as a relief is sought in respect of the nomination of a person with appropriate expertise by the NCSE.?

Outstanding Issues

213. Although the challenge to the Updated AON reports in both cases are within time, to the extent that the relief pleaded is consequential on the failure of the NCSE to nominate an educational psychologist to assist in the assessment process, it seems to me that those grounds of complaint may not be legitimately pursued at this remove.? Indeed, from the outset, the position of the HSE in these proceedings has been that the Applicants are entitled to a new AON as a matter of law and fact and for that reason, the relief sought against the HSE is not necessary.?

214. The question then arises as to what may remain to be decided in these proceedings.? On the second day of the hearing before me, counsel on behalf of the Applicants and the HSE confirmed on the record but without concession on the part of the HSE, that if the Applicants were to succeed as against the NCSE and in consequence a new AON were to be required, then this could occur without court order.? Accordingly, it was confirmed that it had been agreed that the Applicants were no longer seeking any relief as against the HSE.?

215. Given my refusal to extend time in respect of elements of the case pleaded against the NCSE, therefore, the proper view is likely to be that proceedings are at an end against all parties in the light of the agreed position of the Applicants and the HSE.? I note in this regard, however, that small elements of the case as against the HSE arise independently of the claim that the NCSE failed to properly exercise their power to nominate under s.8(3) of the 2005 Act.? In particular, the alleged failure of the Assessment Officer to independently assess education need by mirroring the matters identified in " the s.8(3) assessment " and, specifically in the TO'R case and failing to take account of the fact that psychological assessment had been recommended in the Report of Education Needs to determine cognitive ability arise from the acts or omissions of the HSE and regardless of the claim against the NCSE.? These discrete elements might be summarized as turning on the proper approach of the Assessment Officer to the Reports of Education Need in each case in view of their content.

216. As counsel for the HSE maintained only a watching brief from the morning of the second day, it is likely that the parties consider that these discrete elements pleaded against the HSE independently of the case made against the NCSE no longer require to be decided, although this was not expressly articulated. ?In case I am wrong as to the understanding between the parties, it nonetheless seems to me that insofar as the challenge to the Updated AON reports is concerned (notwithstanding that challenges by way of judicial review are very likely in time as against the HSE having regard to the date of the Updated Reports), real issues arise as to whether there has been a proper recourse to litigation in these proceedings.? I will now address briefly this issue in the context of alternative remedies available in respect of issues of the type which arguably remain in this case, a question addressed on behalf of the HSE in both their Statement of Opposition and written submissions filed in advance of the hearing.

**

**

Alternative Remedy

217. It is in no-one's interests that resources which should be directed to the provision of services are wasted on unnecessary legal proceedings.? For this reason, care to exhaust alternative and effective avenues are required.? Given the imperative to ensure that resources are properly channelled to meet the education needs of children, it is noteworthy that in the TO'R case, no correspondence issued to the Assessment Officer or the HSE referring to the cognitive assessment conducted by disability services to assess educational need either asking for it to be considered in informing the Updated AON then in train or requesting a new AON once it became apparent that it was not considered in the Updated AON Report.? This is a very strange omission in view of the objective of proceedings.? Afterall, TO'R brings these proceedings seeking the appointment of an educational psychologist. ?

218. Neglecting to refer to a relevant recent report co-authored by a psychologist for the purpose of assessing educational needs is hard to rationalise in this context.? Although a lack of candour is not suggested, nonetheless, it seems to me, that the commencement of proceedings in the TO'R case without reference to this relevant, new material is consistent with a failure to properly consider all the circumstances of the case and the alternatives to litigation available before commencing proceedings.?

219. It is also telling that substantive relief sought as against the HSE in both cases in the proceedings as initiated was an order compelling a fresh AON in circumstances where the Applicants are statutorily entitled to seek one (and to obtain one if sought) but have not done so.? It is questionable whether it would be proper for me to grant discretionary relief by way of judicial review in such circumstances, were I asked to do so.? Proceedings of this nature should be a last resort, only availed of where there exists no adequate, alternative remedy and it is difficult to conclude that these are such proceedings.

220. As in the TO'R case, likewise in A.B., no correspondence was directed to the HSE or the Assessment Officer requesting the Assessment Officer to require assistance from an educational psychologist in the assessment of education need in circumstances where the assessment responsibility lay with the Assessment Officer.? No correspondence was directed to the HSE with reference to the very significant changes communicated by the School Principal and the expressed need for an educational psychology assessment supported by the school subsequent to the completion of the Updated AON Report or the fact that an educational psychologist had not been nominated to assist in the assessment of education need during the AON process, despite the request for same.?

221. Instead, nomination of an educational psychologist was demanded of the NCSE, even though it is now very well established that under operative statutory provisions the HSE and not the NCSE are responsible for the assessment of education need.? The NCSE have a limited role confined to nominating a person with appropriate expertise upon request of the HSE and not individual service users, under s. 8(3) of the 2005 Act. ?Whilst the NCSE is obliged to consider a request for nomination of an educational psychologist to assist the HSE in a rational and fair manner, the obligation to conduct a proper AON remains with the HSE Assessment Officer.

222. When the Applicants' solicitors wrote to the NCSE after receipt of the Updated AON Report in the A.B. case asking it to nominate an educational psychologist at that stage to undertake the AON, they ignored the fact that it is the HSE who requests nomination under s. 8(3), not an individual applicant and also that it is the Assessment Officer who is responsible for the assessment, not the nominee of the NCSE or the NCSE.? Despite this, as I have already stressed in this judgment, there was no correspondence with the HSE, even though it is also complained in these proceedings that the Assessment Officer " does not appear to have reached her own findings in respect of the educational needs and services required by AB ".

223. Insofar as the Applicants contend that the Updated AON Report completed on foot of the NCSE nominated school completed Report of Education Need was inadequate and did not result from a proper " gold standard " assessment of educational needs, I am satisfied that a remedy lay within the provisions of the 2005 Act.?I see no reason why the statutory complaints process provided for under ss. 14 and s. 15 of the 2005 Act is incapable of adequately addressing the matters complained of against the HSE in this application.?

224. The said statutory complaints process provides expressly at s.14(1)(c) a means for addressing a claim that the assessment under s.9 was not conducted in a manner that conforms to HIQA standards.? The HIQA standards include, inter alia, Standard 1. 7 which provides that the AON report is a comprehensive, evidence based, up to date and accurate record of the findings of the person's Assessment of Need. ? It seems to me that the grounds alleged to form a basis for the reliefs sought in the secondary challenge against the HSE all fall within that standard, s pecifically, the claim that t he Assessment Officer carried out no independent assessment and failed to reach her own findings in respect of educational needs and services may be addressed within the statutory complaints process.

225. Even if I am wrong in this and accept as established that the AON in A.B., originally prepared before C.D. No. 1, failed to properly reflect that the assessment duty lay with the Assessment Officer, not the NCSE nominee, then it still seems to me that it would not be an appropriate exercise of discretion to grant an order of certiorari in the presenting circumstances, if one were being pursued.? At no stage did the Applicants write to the HSE seeking to have the Assessment Report amended to be brought in compliance with the judgment in C.D. No. 1. ?

226. While the HSE Assessment Officer ought to have taken account of clear findings in C.D. No. 1 and C.D. No. 2 confirming that the assessment duty rests with the Assessment Officer in revising the AON and the Updated AON Report might remain amenable to challenge on C.D. No. 1 and C.D. No. 2 grounds, I cannot overlook the fact that it was open to the Applicants to bring this flaw in the report to the attention of the Assessment Officer and request a new AON pursuant to statutory entitlement rather than institute costly legal proceedings.? The 2005 Act clearly prov i des the Applicant with the possibili t y of applying for a new assessment report, using a statutory mechanism which is subject to s t rict time frames, which are themselves capable of enforcement in the Circuit Court.? Section 9 of the 2005 Act specifically provides that applicants may make multiple subsequent applications for an AON after an initial assessment has been carried out.? The HSE is precluded from refusing such an application in the circumstances of these cases.?

227. Significantly, in A.B., the Applican t s assert that in the period between the completion of the Report of Education Needs on the 28 th of January, 2025 and the issue of an Updated AON on the 11 th of February, 2025 that the Minor Applicant ' s circumstances changed.? This was not relied upon to seek a new AON or to request the Assessment Officer to procure the psychological expertise required as part of the assessment of education need.? Likewise, in TO'R the Assessment Officer's attention was not drawn to the existence of an updated interdisciplinary report directed to the assessment of education needs and appropriate school placement when she prepared the Updated AON.?

228. The Oireachtas has expressly enacted a remedy at s. 9(8) of the 2005 Act for cases in which there has been a material change of circumstances or where further information has become available which relates to the personal circumstances of an applicant or where a material mistake of fact is identified in an assessment report.?In both cases now before me in these judicial review proceedings, there are circumstances which would ground the making of a subsequent application for a new AON.? The Applicants are entitled to such new AON as of right, but inexplicably no such application was made in either case.

229. The failure to engage with the HSE in relation to the proper performance of its statutory functions is particularly significant in circumstances where, at least in the case as initiated, the Applicants sought an order of mandamus as against the HSE compelling the provision of a revised AON, even though the basis for seeking one was never set out in correspondence and one was never sought in accordance with the applicable statutory provisions.

230. Recalling that proceedings by way of judicial review allow for discretionary remedies, when the relief sought is an order of mandamus it is not only good practice but an established rule that an applicant for mandatory relief must first call upon the public body to perform its asserted duty (R (Butler) v. Navan UDC [1926] I.R. 466 and De Burca v. Wicklow County Council [2002] 2 I.R. 196; [2002] IEHC 126).? The failure to comply with a practice requirement to make a specific demand for the performance of the public duty which it is sought to enforce by way of mandamus is relevant to the exercise of the court's discretion in judicial review proceedings.

231. In these cases, the Applicants initiated applications for mandamus by way of legal proceedings against the HSE without this action being preceded by a " mandamus letter ". ?An appropriate mandamus letter would have included an assertion of the legal duty the HSE is required to perform, a statement as to the evidence that the duty had not been performed and a request for compliance within a reasonable time as specified and notice that if ignored, legal proceedings may ensue seeking an order of mandamus.? No such letter was written to the HSE in these cases in advance of the commencement of these proceedings, as it ought to have been.

232. Even if the Applicants' claims against the HSE were technically in time (because they filed the judicial review within three months of receiving the Updated Assessment of Need) and even if the Applicants had not already agreed during the hearing that they were not seeking relief against the HSE, I would still refuse to grant any remedies against the HSE.? The law provides specific, built‑in complaint and appeal mechanisms for problems with an AON.? The Applicants did not use those remedies before initiating judicial review.?

233. Judicial review is meant to be a last resort, not a first step.? The Applicants also did not write to the HSE to identify the legal errors they were alleging or give the HSE a chance to fix the problem without litigation.? As the Applicants skipped the statutory remedies and did not give notice to the HSE, it would be inappropriate for the court to grant relief against the HSE, even if the claims were timely and even if the applicants had not already abandoned the claims during the hearing.

CONCLUSION

234. For the reasons set out above, I have concluded that these proceedings are out of time insofar as the nomination of the School Principal by the NCSE in each case is concerned.? No basis for properly exercising a discretion to extend time has been shown.?

235. Whilst separate relief against the HSE was not pursued at hearing in the manner outlined above, I would nonetheless not have considered it an appropriate exercise of my discretion to grant relief against the HSE in these cases because the Applicants did not pursue available statutory remedies or engage in proper pre‑litigation steps vis a vis the HSE.

236. It is my view that the premise of these proceedings was incorrect. ?There was an apparent conflation of the duty on the school to provide information in their capacity as an education expert in respect of the child enrolled in their school with the obligation to conduct an assessment of education need to a " gold standard ".?

237. It was seemingly overlooked or not properly considered on behalf of the Applicants that the HSE's Assessment Officer has the sole statutory duty to conduct the AON at a " gold standard," without reference to cost or capacity.? The NCSE's function is limited to nominating an appropriate expert to assist.? A teacher's involvement in assisting in the assessment of education need by providing information regarding a child enrolled in a school does not replace or discharge the duty on the HSE Assessment Officer under s. 8 of the 2005 Act to conduct that assessment to the mandated standard.

238. There is no legal basis for any purported obligation on teachers to conduct an assessment of education need on foot of a nomination under s. 8(3) of the 2005 Act. Schools and teachers employed in them are required only to provide information (compiled using their expertise as educators) under s.14 of the 2004 Act.? This does not constitute a duty to carry out the educational assessment mandated under s. 8 of the 2005 Act.? Any information provided by schools through a nominated teacher familiar with the child assists in the mandated assessment of educational need of that child but does not constitute the entirety of the educational needs assessment under s.8 of the 2005 Act. ?

239. Offering guidance to teachers in schools in relation to the provision of information in the context of their nomination by the NCSE under s. 8(3) of the 2005 Act by means of circular is lawful if it does not purport to impose obligations on the nominated teacher for which no legal basis exists.?

240. The NCSE must retain case‑by‑case discretion in choosing whom to nominate in exercise of its discretion under s.8(3) of the 2005 Act.? A discretionary nomination process cannot lawfully be transformed into an automatic appointment of teachers in the school where a child is enrolled regardless of circumstances. Teachers may be appropriate experts in many cases, but not always.? If a child's needs justify a specialist (e.g., an educational psychologist), the NCSE may need to explain why a teacher was nominated instead in cases where this is not already apparent.

241. The Applicants sought to put in issue in these cases that there had been a failure on the part of the NCSE to give individual consideration to the circumstances of each of the minor Applicants before proceeding to nominate in accordance with the terms of the former Circular.? Such consideration is inherent in the proper exercise by the NCSE of its discretion.? In circumstances where the nomination by the NCSE was not interrogated or challenged in time, I make no findings in relation to the lawfulness of the nomination of the school principals in each of these cases.

242. Where the evidence shows that the NCSE sometimes appoints experts who are not teachers in the school where a child is enrolled and the NCSE does not follow an inflexible policy restricting nominations to school staff under the terms of a circular directing it in relation to who it nominates, then there is no difficulty with a circular the terms of which provide guidance to teachers in schools where they have already been nominated in relation to the provision of information regarding a child in their school for the purpose of providing assistance in the assessment of need under s. 8 of the 2005 Act.

243. Although the Applicants are out of time to challenge the nomination of a school principal in each of these cases, it bears note that there is no evidence to suggest additional support was required to complete the Report of Education Need or that teachers could not provide the information sought, or some of it, in either case.? Furthermore, it is clear from the terms of the Updated AON Report, that the input received through the Report of Education Need signed by each of the principals on foot of the NCSE nomination appropriately contributed to the AON process. The said reports were of some assistance to the HSE Assessment Officer.

244. In all the circumstances, I am refusing the relief sought in both these cases.? I will hear the parties in respect of any consequential matters, if necessary.? The proceedings will be listed for mention following the expiry of fourteen days from the electronic delivery of this judgment unless the parties confirm that terms are agreed and a listing is not required.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC194.html